Case No: CO/5798/2003

Neutral Citation Number: [2004] EWHC 724 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 6 April 2004
Before :

THE HON. Mr Justice Collins

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Between:

	R(Cherwell District Council)		
	- and -		
	First Secretary of State 		
- and -
Secretary of State for the Home Department 

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(Transcript of the Handed Down Judgment of
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Mr David Elvin Q.C. & Mr. James Maurici (instructed by Messrs Sharpe Pritchard, Solicitors) for the Claimants
Mr Philip Sales & Ms Sarah Moore (instructed by the Treasury Solicitor) for the Defendant
Mr Keith Lindblom Q.C. & Mr Rupert Warren for the Secretary of State for the Home Department (Interested Party).
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Judgment

Mr Justice  Collins: 
1.	The claim before me seeks to quash the decision of the defendant in a letter of 18 August 2003 whereby he approved, subject to conditions, the development proposed in a Notice of Proposed Development issued by the Home Office (as I will describe the interested party in this judgment) on 14 May 2002.  The proposed development in question is described in the Notice thus:-
“Demolition of existing buildings and erection of a Home Office -Immigration and Nationality Directorate – Accommodation Centre – Outline Proposal utilising existing access from the public highway
AT: land at DSDC, Bicester, Oxfordshire
RESERVED MATTERS: Siting, design, external appearance and landscaping”.
2.	The proposal was in furtherance of government policy in dealing with asylum seekers.  Accommodation centres were said to be ‘a key element of the more highly managed asylum system’.  New centres with a total capacity of 3,000 were to be established to enable claims to be dealt with through to the end of any appeal process.  Each centre would provide ‘full-board accommodation and services, including health-care, education, interpretation and opportunity for purposeful activities’.  The proposals would be taken forward on a trial basis.  All this was contained in a letter from Jeff Rooker, the then responsible Minister of State, which accompanied the Notice of Proposed Development.  The proposed centre with which this claim is concerned was to accommodate 750 persons.
3.	The Notice was also accompanied by a Planning Supporting Statement which explained what was proposed and how the Centre would operate.  Paragraph 1.3 stated:-
“The notification is an outline notification to include access, with all other matters to be reserved for a future submission.  The Home Office wishes to secure the planning principle for the development of the site and there will then be a design, build and operate (i.e. DBO) tender for all the Accommodation Centres.  The Home Office will retain ownership of the site but the Centre will be operated by the chosen contractor (i.e. the successful DBO bidder).  The Home Office will work with the chosen contractor on the detailed design of the Centre.  However, it will be the Home Office who submits the details to the Council (i.e. to seek approval of reserved matters and discharge conditions) and continues to undertake all discussions with the Council”.
In Paragraph 3.7 this was said: -
“The Home Secretary has announced that Administration Centres will be outside the main urban areas.  This is because of the need to acquire large, discrete sites which have the capacity to facilitate on-site services without the need to put pressure on mainstream local services”.
4. By the time the inquiry before an inspector was commenced in December 2002, what was set out in both those paragraphs had changed. The effect of statements by both the Secretary of State and the Minister for Citizenship and Immigration (Beverley Hughes) in Parliament and to a Commons Select Committee in the Summer and Autumn of 2002 was that there was no policy that Centres should be outside urban areas.  The only limitation was that they should not be in areas which already had a significant number of dispersed asylum seekers and that it was not right that only deprived inner city areas should take those who were transient because they were seeking the right to remain in this country.  There was no policy that centres should be in rural rather than urban areas. 
5. An agreement had been negotiated to which the claimants, Oxfordshire County Council, the Secretary of State for Defence and the Home Secretary were parties, which provided by paragraph F.2.1.:-
“Under the DBO contract the contractor will be granted a lease of the  [development site] to allow the Contractor to undertake the development … The term of that base will be co-terminus with the DBO Contract”.
The agreement also reflected concerns about enforcement and records (Paragraph H1) that ‘all stipulations and restrictions on the designing, building and operating of the Development should be contained in planning obligations entered under Section 299A’ of the Town and Country Planning Act 1990 as amended (the 1990 Act).  I shall explain the significance of that when I deal with the relevant statutory provisions in due course.  The agreement under s.299A was concluded on 14 April 2003.  Enforcement  is dealt with in Clause 11.  The Home Office undertakes to co-operate with the councils in dealing with any breaches.
6.  The proposals elicited widespread opposition.  Indeed, it is apparent that any centre will be hotly opposed by those who live nearby or who feel they or their authority’s services will be affected by the presence of a number of asylum seekers.  One other concrete proposal has been the subject of an inquiry.  It was also opposed, as was the present one.  The claimants’ objections  were, broadly speaking, on the following grounds:-
(1) the failure to follow a sequential approach to site selection;
(2) impact on the countryside;
(3) the unsustainable location of the sites;
(4) the adverse impact upon services provided for the local community by public agencies and the fear of an increase in crime and problems with public order; and
(5) site contamination and foul surface water drainage matters”.
7.  The Home Office has said that it has looked at a considerable number of potential sites for centres all over Great Britain but has so far found only two which are suitable.  No further details of the exercise carried out have been given, but it is common knowledge that there will be strong opposition to any Centre.
8.  The planning inspector appointed to consider and report on the proposals sat over 14 days between 10 December 2002 and 3 March 2003.  A considerable number of witnesses gave evidence.  The inspector reported on 18 April 2003.  He recommended that approval should not be given for the proposed development.  His conclusions are contained in Paragraph 14.75 of his report, which was lengthy and detailed, running to some 50 pages.  Paragraph 14.75 reads:-
“In making the overall decision it is my view that greater weight should be attached to the factors against the proposal than for it.  I say this for 3 reasons.  First, the need to create a more sustainable pattern of development lies at the very heart of the Government’s well-established approach to land use planning in this country.  It would, in my view, be inappropriate for the Government to make an exception in respect of its own development.  Second, the necessity for, and the benefits of, the proposed Accommodation Centre being in this rural area were not, in my view, shown by the Home Office to be convincing or overriding.  The proposal seems to me to be driven by the availability of some surplus Government-owned land and by an undemonstrated belief that this rural location would aid the self-containment of the Centre.  Third, the risk of road accidents involving pedestrian asylum seekers and others is, in my view, a very real, practical worry that was given insufficient attention by the Home Office.  My overall conclusion is, therefore, that on balance, the First Secretary of State should not give approval to the proposed development”.
The first two reasons are based on policy considerations, the inspector’s view being that it had not been established that the development was appropriate in a rural area.  The third was based on particular concerns about road safety.
9.     In a decision given by letter of 18 August 2003, the defendant disagreed with the inspector’s recommendation and approved the proposed development.  It is this decision that is challenged in these proceedings.  The claimants have relied on seven separate grounds each of which is said to demonstrate that the defendant erred in law.  Some of the grounds overlap, but it is convenient to deal with them separately.
10.    The first ground asserts that the procedure adopted by the Home Office was wrong.  The development was to be carried out after a lease had been granted to the Contractor appointed under the DBO arrangement and so the development was one to which the Planning Act applied.  Thus the use of a non-statutory procedure was unlawful.  The argument is deployed in two ways.  First, it is said that there was a specific statutory procedure under Part XIII of the 1990 Act which the Home Office was obliged to use.  Secondly, it is said that the development could not be regarded as development by a Government department but was in reality development by a private contractor and as such could not qualify for Crown Immunity.  The development would therefore need planning permission in the ordinary way.
11.   The Crown is immune from the statutory control of development since, save as expressly indicated as in Part XIII of the 1990 Act, the Planning Acts do not apply to it.  So much is confirmed by the decision of the House of Lords in Lord Advocate v Dumbarton District Council [1990] 2 A.C. 580.  In the course of his speech, which was the only reasoned speech, Lord Keith of Kinkel at pp.596-597 approved observations of Lord Denning M.R. in Ministry of Agriculture v Jenkins [1963] 2 QB 317.  The important remarks are that ‘the Crown does not need to get planning permission in respect of its own interest in Crown lands’.  Lord Denning also refers to the need for other persons, for example tenants of the Crown to get planning permission in respect of their interests.
12.   The facts of the Dumbarton case are important.  In connection with the improvements of a security fence at its submarine base at Faslane, the Ministry of Defence proposed to place temporary works on a road which ran alongside the base and which was not itself Crown land.  When the Ministry coned off part of the western carriageway of the road and erected portacabins and placed materials on that part, Dumbarton served enforcement and stop notices under the provisions of the planning legislation then in force.  The validity of those notices was in issue and the House of Lords decided that they had no effect since the Planning Acts did not bind the Crown and so the development by the Crown could not be prevented.  I do not need to burden this judgment with a citation of the full passage, but at pp602-603 Lord Keith made it clear that the Planning Acts did not apply to any development by the Crown, whether on its own land or elsewhere.  He pointed out that Jenkins case was concerned with afforestation on Crown lands and so Lord Denning would naturally have referred to the Crown’s interest in Crown lands.  But, as Lord Keith said (at p.603B):_
“There is no reason to suppose that he had in mind that the Crown might need to get planning permission in respect of any other land or an interest in any other land”.
13.     Since it was obviously desirable that it should be possible for objections to proposed Crown development to be considered and that any controversial or major developments should be properly assessed by an independent planning inspector, a non-statutory procedure has been established.  This is dealt with in Circular 18/84, which came into being at the time of the passing of the 1984 Planning Act, which itself contained provisions which are now to be found in Part XIII of the 1990 Act.  It is headed:
“CROWN LAND AND CROWN DEVELOPMENT.
Part IV of the Circular deals with development by government departments.  Paragraph 4, so far as material, reads:-
“Development by the Crown does not require planning permission.  But Government departments will consult local planning authorities before proceeding with development (including material changes of use) which would otherwise require planning permission”.
My attention is drawn to paragraphs 26 and 27.  Material parts of these paragraphs read:-
“Unless the developing Department, when submitting the Notice of proposed Development, exceptionally asks for a longer period in which to start the development, and this longer period is agreed by the local planning authority, they will start that development within five years, …
If the developing department do not submit details of the reserved matters or do not commence development within the appropriate period and still intend to carry out the development they will submit a fresh Notice …”
14    While the Crown could undertake development itself without planning permission and, if it did so on its own land, could dispose of that land as developed, problems arose if it wanted to dispose of land with the benefit of some form of permission for development.  A non-statutory procedure had been devised by which the Department wishing to dispose of land could seek an opinion from the local planning authority whether planning permission would be forthcoming.  If the local planning authority gave a negative answer, the Secretary of State could be asked for his opinion.  That procedure was held to be unlawful by the court in R v Worthing Borough Council ex p. Burch [1984] J.P.L. 261.  This and other concerns about the extent of the Crown’s immunity led to the enactment of what is now Part XIII of the 1990 Act.  The key section is s.299.  That section, so far as material, reads:-
“(1) This section has effect for the purpose of enabling Crown Land, or an interest in Crown land, to be disposed of with the benefit of planning permission …
(2) Notwithstanding the interest of the Crown in the land in question, an application for any such permission … may be made by –
(a) the appropriate authority; or
(b) any person authorised by that authority in writing;
and, subject to subsections (3) to (5), all the statutory provisions relating to the making and determination of any such application shall accordingly apply as if the land were not Crown land.
(3) Any planning permission granted by virtue of this section shall apply only –
(a) to development carried out after the land in question has ceased to be Crown land; and
(b) so long as that land continues to be Crown land, to development carried out by virtue of a private interest in the land”.
By virtue of definitions contained in s.293, Crown land means land in which there is a Crown interest and the appropriate authority is the government department which has the management of that land.  A disposal includes the grant of a lease: s.336(1).
15.   Mr. Elvin, Q.C. draws attention to the arrangements for the DBO whereby  no development is to commence until the lease to the contractor has been granted.  The effect is, he submits, that the development will be carried out by a private person, not by the Crown, after a disposal and so falls directly within s.299.  The land in question remains Crown land because the Crown retains its interest in it as freeholder, but the contractor will be carrying out the development by virtue of its private interest in the land, namely the lease.  That being so, the non-statutory procedure should not have been used and in any event the wording of Circular 18/84 is applicable only to development to be carried out by the Department.
16.    This issue was raised by the claimants at the inquiry.  The inspector’s view was that the issue was a matter of law to be decided by the defendant, but that in his opinion the Home Office was entitled to use either the statutory or the non-statutory procedure and that, since the development was Crown development, either the Home Office or the contractor could in due course make the detailed reserved matters proposals.  The defendant agreed with the inspector’s opinion.
17.      Since the Home Office chose to adopt a process whereby the DBO contractor was to be granted a lease before the development, which it was to be responsible for designing, building and operating, was commenced, s.299 would apply. But it is apparent that s.299 was enacted to enable the Crown to have an advantage that it otherwise would not have, namely the ability to dispose of land with the benefit of planning permission.  Section 299(2) uses the word ‘may’.  I see no reason to suppose that Parliament intended that, whenever the Crown wished to dispose of land or an interest in land with a view to development being carried out by a private person, s.299 had to be used.  Mr. Elvin recognised that if the lease had come after the Centre had been constructed, s.299 would not have applied, but the position, as far as the objectors were concerned, would have been no different.  Further, I do not think cases such as Henry Boot Homes v Bassetlaw DC (2003) 1 P&CR 23 are relevant since Part XIII is not a planning code which disables the Crown from acting in any other way.
18.  Mr. Elvin contends that his submission is supported by the lesser powers of enforcement which apply if the Circular is used.  The whole panoply of enforcement notices, stop notices and injunction can be used against a private individual but not against the Crown.  However, enforcement under Part XIII is subject to special rules.  Since the Crown will retain its freehold interest, the land remains Crown land.  Section 294(1) of the 1990 Act provides: -
“No enforcement notice shall be issued under section 172 in respect of development carried out by or on behalf of the Crown after July 1 1948 on land which was Crown land at the time when the development was carried out”.
Subsections (2) to (7) deal with special enforcement notices and do not apply in the circumstances of this case.  Section 299A enables the Crown to enter into planning obligations which echo those referred to in s.106(1)(a) to (d).  There is such an agreement in this case.  Breaches of any of the obligations can be enforced against by injunction, but by s.299A(5), the appropriate authority (in this case the Home Office) must consent to any such action.  In the agreement, it had agreed to offer all reasonable co-operation in this respect and any failure would be enforceable through the court.
19.    Other than in relation to enforcement, it is accepted that the non-statutory procedure has provided the claimants and all other objectors with all the safeguards and rights which they would have been afforded had this been an application for permission by a private developer. If the development is properly to be regarded as having been carried out on behalf of the Crown, s.294(1) would apply so that enforcement is no different.  The inspector talked of a permission or approval under the non-statutory procedure running with the land.  That is correct if s.294(1) is applicable: see Newbury DC v Secretary of State (1977) 35 P&CR 170 at 180 per Robert Goff, J., referring to the materially identical provisions of s.266(3) of the 1971 Act.
20.   The important question is therefore whether this development is to be carried out on behalf of the Crown.  I have been referred to a decision of Forbes J in London Borough of Hillingdon v Secretary of State & others CO/1604/1998 and 1745/98 30 July 1999.  That case concerned the construction of an incinerator at Hillingdon Hospital.  Enforcement action had been taken by Hillingdon and so an issue was whether the development fell within s.294(1) of the 1990 Act and  was thus  immune from enforcement.  The 18/84 procedure had been used, but enforcement action had been pursued following the making of a reserved matters application and construction of the incinerator by the contractor.  What Mr. Elvin (who appeared for the Secretary of State in that case) submitted was a crucial factual distinction was that the contractor had not been granted any interest in the land before the development had taken place.  There were other factual differences, but none seem to me to be material to that point, save that, as Mr. Elvin pointed out, there had been detailed evidence of the precise relationship between the Crown and the contractor.  That was no doubt because in that case the development was up and running whereas here nothing has yet been started.  Thus in submitting that the development was on behalf of the Crown, Mr. Elvin had been able to point to the significant measure of control retained by the Crown over the design and construction, to the fact that the incinerator was constructed for the Crown’s purposes and to the fact that the Crown derived significant benefits from the construction and operation of the incinerator.
21.    Forbes J rejected the argument on behalf of Hillingdon that ‘by or on behalf of the Crown’ meant ‘by the Crown, its servants or agents’.  After referring to a decision of the High Court of  Australia in  R v Portus (1949) 79 CLR 428, Forbes J expressed himself thus:-
“The expression by or on behalf of the Crown is not to be interpreted, whether for the purposes of the common law principle of Crown immunity or for the purposes of s.294 of the TCPA 1990, by a strict application of the private law definitions of master and servant and principal and agent.  I agree with Mr. Elvin that a wider and less restricted interpretation of those words is appropriate, at the very least when considering whether, as in the present case, the matter whereby the Crown seeks to achieve its purpose in the development of land is ‘development by or on behalf of the Crown’
Where, (as in the present case) the context and subject matter, which is provided by the contractual provisions and other relevant circumstances relating to the development in question, demonstrate a significant degree of control by the Crown over the work being or to be carried out by the independent contractor and show that the purposes of the Crown, from which it will derive significant benefit, are to be achieved by the particular method which has been adopted for developing Crown land, the essentially factual conclusion, that the development in question is ‘development by or on behalf of the Crown’,  may well be justified, as in the present case”.
22.   It is clear that the Accommodation Centre will be constructed and operated for the purposes of the Home Office.  The precise manner in which the centre is brought into being and operated and whether or not a lease is granted and whether before or after any development cannot affect or detract from that.  There is no other purpose behind this development.  Mr. Elvin in reply expressed horror at what he submitted was a novel suggestion that if the Crown was the freeholder it could require any development to be carried out by a private individual  and such development would be immune from control.  But that is not what is being decided.  I see nothing in Forbes J’s decision that suggests he was not intending to apply a general test.  In these days of public private partnerships and the involvement of the private sector in constructing and operating developments which are manifestly for Crown purposes, such as this Centre, the approach Forbes J approves is in my view manifestly correct.  I have no doubt that this development will be carried out on behalf of the Crown and so will be within s.294(1).  The Circular is not to be interpreted as if it were a statute and it is in my view applicable to and so can be used for any development which falls within s.294 or  Crown immunity.  Although the facts of a given case may well dictate whether any development can be said to be by or on behalf of the Crown, in my view the circumstances of this case are such that no other conclusion could reasonably be reached.
23.   It follows that the development by the DBO contractor does not require planning permission since it is development on behalf of the Crown and is protected by Crown immunity.  The existence of the s.299A agreement and the 18/84 procedure has given the necessary protection and the defendant was correct to reject the claimants’ arguments.  I too reject them.
24.    The second ground concerns the relevance of alternative sites.  The Home Office had maintained that the availability of alternative sites was not material, partly because the centres were to be tried out in rural as well as urban areas and this trial was in a rural area and partly because of the impossibility of being able to identify within any reasonable time or by the reasonable use of resources any alternative sites.  In any event, it is said that there is in general no duty to identify alternative sites; it is only if such sites are put forward that a comparison exercise is material.  Otherwise, an inquiry would never end if every possible site had to be examined and comparisons made.  The claimants submit that, when proposals are for developments which are recognised to have adverse effects and where a major argument is that the need outweighs the disadvantages, it is necessary to consider whether alternative sites exist elsewhere.  At the very least, the Home Office should have produced some positive evidence of the efforts they had made and the sites which had been considered.
  25.   The inspector’s conclusions are set out in Paragraphs 14.16 to 14.20 of his report.  In summary, he points out that the need to consider alternative sites arises mainly when specific sites which might meet the need in a less harmful way have been canvassed.  No such sites had been identified.  He referred to the difficulties in carrying out any such exercise. He concluded:-
“The task of searching the country for a better available site and finding one, within a reasonable time-scale, that is demonstrably more acceptable to local people borders on the impossible.  The Council’s approach would, in my view probably be fatal to the Accommodation Centre concept”.
The defendant agreed with the inspector.
26.   Reliance was placed by all parties on R(Jones) v North Warwickshire Borough Council [2001] EWCA Civ 315 in which the Court of Appeal summarised the law in relation to the relevance of alternative sites.  After considering a number of authorities, Laws LJ said this at paragraph 30: -
“ … all these materials broadly point to a general proposition , which is that consideration of alternative sites would only be relevant to a planning application in exceptional circumstances.  Generally speaking … such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the sites proposed such conspicuous adverse affects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question”.
Examples given by Simon Brown J in Trusthouse Forte Hotels Ltd v Secretary of State (1986) 53 P&CR 293 of developments having such significant adverse affects were airports, coalmining, petro-chemical plants, nuclear power stations and gypsy encampments.  I venture to doubt whether an accommodation centre necessarily falls within the category to which Laws LJ has referred –  he used the adjective conspicuous – but, even if it does, the weight of the planning objections to it on the site in question are material.  The site itself, though  rural, is not one where no development had thitherto existed and it was on the edge of other developments including HM Prison Bullingdon.   The inspector was entirely justified in saying that the identification of alternative sites would have been a virtual impossibility.  The Home Office accepted that the site was not ideal, but contended that the objections should not prevail.  In my judgment, the inspector was correct and there is no error of law in the approach taken to the relevance of alternative sites.
 27.     The third ground asserts that the sequential test in national planning policy should have been applied to selection of the site.  Since it had not been, there was a fatal objection to the development.  The inspector noted that the development in question was sui generis (as all counsel have accepted) and so the specific sequential approaches required in PPG3 (housing) and PPG6 (retail) did not directly apply.  PPG1 (general policy) and PPG13 (transport) refer to a general approach which should focus on urban development first.  Reliance has been placed on the statement in paragraph 3.10 of RPG9, which applies to the South east, that: -
‘national policy requires a sequential approach to development’
The inspector regarded that as an over-simplification, stating that an urban focus was what was needed and a specific sequential approach was unnecessary.  The defendant agreed.
28.  I am not persuaded that there is any real distinction between what is called the sequential approach and urban focus.  The overall policy is that urban or ‘brownfield’ sites, that is to say, sites where development already exists should be preferred to rural or ‘greenfield’ sites.  There may be sites in rural areas which have been developed, but they should not be chosen in preference to urban sites.  It is too easy to read policy guidance as if they were statutory requirements.  They are not; they are, as their titles indicate, guidance.  In all the circumstances, it seems to me that this ground does not in reality add to the arguments raised in relation to the previous ground.  And it is to be noted that this site is one which has previously been developed.
 29.   I am satisfied that the inspector’s approach was not wrong in law and that there is no     substance in this ground.
  30.  The fourth ground raises a somewhat technical argument based on the meaning of ‘curtilage’ in relation to previously developed land.  The argument arises because of a reference to the meaning of ‘previously developed land’ in PPG3, Annex C.  The expression there used is the “curtilage of the development” and a footnote states:-
“Where the footprint of the building only occupies a proportion of a site of which the remainder is open land (such as an airfield or a hospital) the whole site should not normally be developed to the boundary of the curtilage”.
31.   ‘Curtilage’ has been used in the Planning Acts, for example in relation to listed buildings.  Its dictionary meaning is a small yard attached to dwelling house or an area attached to a dwelling as part of its enclosure. That it is not necessarily to be judged by size is clear from Skerritts of Nottingham v Secretary of State [2001] QB 59.  But Mr. Elvin relies on that case for the proposition that only one building can have a curtilage.
32.     I do not find that approach particularly helpful.  I repeat that the PPGs are not to be construed as statute.  The use of the word ‘curtilage’ in connection with a development may not be particularly apposite, but the footnote makes clear what the author was about.  If the development has a number of buildings on the site each may, if one adopts the Skerritts  approach, have its own curtilage.  But what is required is that the previous development is looked at as a whole and the focus will be on the site.  If part has been hitherto undeveloped, albeit part of the site, it may be appropriate to leave it undeveloped.  In fact, two substantial fields to the west of the site have not been developed and the proposal involves that they should be left substantially undeveloped.
33.    I have no doubt that the inspector was correct to regard the whole site as falling within the definition in PPG3, Annex C.  The defendant regarded the fact that this was previously developed land as important, given the Government’s policy to try out accommodation centres in both urban and non-urban locations.  He was entitled therefore to attach significant weight to this factor.
34.   The fifth ground concerns the impact on local services.  There were particular concerns that there would be demands on social services and in relation to special educational needs and on the local hospital. The claimants’ case was that the on site facilities would not prevent the need for outside services.  It was noted that ministerial statements by Beverley Hughes had indicated that a non-negotiable point for her was that the services provided on site should cater for the needs of these asylum seekers and they should not be dependent on mainstream services within the community (Evidence to Select Committee on 18 September 2002 Q49).  On the day the inquiry opened, a Press Release from the Home Office quoted Beverley Hughes thus: -
“As we have always said the Centres must be large enough to be self-sufficient so that they do not impact on local services and for this reason health and education facilities will be provided within the centre”.
At the inquiry, the Home Office indicated that it was not prepared to undertake that any costs which might be caused to local services would be defrayed by it.  The evidence put before the inspector led him to assess Government policy on Accommodation Centres in these words: (Paragraph 14.12):-
“Accommodation Centres for, in total, 3000 asylum seekers should be established away from those areas that have significant numbers at present (including London, Kent and certain inner city areas) so as to share their effects more evenly.  They should be as self-contained as possible, to avoid placing excessive burdens on local services, such as schools and doctors.  They should be trialed (sic) in both urban and rural areas to see how they perform in out of town as well as in town locations.  One part of the trial should be for Centres of 750 persons capacity, with families as well as single persons; another should be for 400 single men.  The policy is subject to assessment via the planning process”.
Thus the minister’s statements were not, as events turned out, entirely accurate since it was accepted that there might be an impact on local services, albeit it was said that that impact would be modest and would certainly not be excessive.
35.  The inspector concluded that in relation to special educational needs and social services it was quite possible that demands would be disproportionately high because some asylum seekers were likely to have had stressful or traumatic past experiences.  Although the estimates were that additional costs would be ‘slender’ or ‘modest’, he felt that it would have been reasonable to have included provision for an appropriate financial contribution in the s.299A agreement.  The defendant disagreed.  He said (paragraph 32) that there was limited evidence that there would be a demand on the services and that, as the Home Office had confirmed in evidence, those who demonstrated a potential requirement for social care would be identified at the induction centre and would not be sent to the Centre.  As far as children with special educational needs were concerned, the estimate before the inquiry was that such children might amount to 0.4% of all in Oxfordshire.
36.   It is contended that the defendant was in error in referring to percentages and that the evidence in terms of actual cost was an estimate of £240,000 and in terms of extra load on staff was one full time social worker and a real detriment to educational services.  Those points were before the defendant since they are summarised in Paragraphs 7.41 to 7.47 of the inspector’s report.
37.  Whether the impact would be disproportionate was a matter of judgment and the defendant was entitled to disagree with the inspector.  There is no doubt that he could properly regard the likely impact, since the forecasts were inevitably somewhat speculative, as not excessive, modest and slender.  The percentage approach was not irrational.  I see no error of law in his approach.
38.  The sixth ground is based on the failure by either the inspector or the defendant to deal with a submission made by the claimants that, if the inspector recommended approval of the proposal, it should be only temporary initially.  It was recognised that the Home Office evidence was that, even if the trial was unsuccessful, the development would not be closed down but would continue in government use.  In paragraph 14.6, the inspector noted as follows: -
“The proposed Centre would not, however, be temporary.  The Home Office see it as a permanent development.  Any failings in the trial would lead to operational improvements being made”.
39.    Even if the inspector and the defendant should have dealt with the submission, it is obvious why it did not find favour.  It would therefore in my view be pointless to quash the decision on this ground.  It is a clear case for the exercise of discretion not to grant relief since a reconsideration of the whole matter would involve a pointless waste of time and money when the reasons are so obvious (and indeed are implicit in the decision reached) why a temporary permission was rejected.
40.   The seventh ground attacks the defendant’s rejection of the inspector’s view that the need for, and benefits of, the proposed centre being in a rural area had not been shown to be convincing or overriding.  The defendant said in Paragraph 19 of the decision letter: -
“There is, as confirmed by the Home Office, evidence to the inquiry, an urgent need for a trial of accommodation centres for asylum seekers, both in urban and non-urban locations, and this is an essential part of the Government’s policy on asylum …
Given this clear national policy background, the [defendant] does not agree with the inspector that it is necessary for the Home Office to demonstrate convincing reasons why it is necessary for such a proposal to be located in a non-urban location”.
The Home Office policy was a matter which could properly be taken into account since it established the need.  But there was no question of the policy dictating the defendant’s decision in this instance.  He had to look at the planning objections to the particular development in issue and balance those against the need for and benefits of that development.  Thus the claimants reliance on West Midlands Probation Committee v Secretary of State [1998] TPC 388 is misplaced.
41.     Reference has been made to the other site which has been proposed for a Centre at RAF Newton.  It is said that in that case the Home Office has sent out a post-inquiry letter which is relevant in particular to the second ground.  It is said that this shows that the Home Office now takes the view that alternatives are a material consideration.  It shows nothing of the sort.  What may be done in the case of a different application on a different site which has different matters to be taken into account cannot, at least in respect of what is relied on by the claimants, affect the lawfulness of what was done in this case.
42.     In all the circumstances, I am satisfied that no grounds have been established which would justify me in deciding that the defendant’s decision was wrong in law.  I appreciate that this will be a considerable disappointment to the many who oppose the establishment of this centre.  But I can only act if an error of law is established and, for the reasons I have given, there is in my judgment no error which could produce relief.  The defendant was entitled to exercise his own judgment on the weight to be attached to the material matters and thus to differ from the inspector.  The claim must therefore be dismissed.
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MR JUSTICE COLLINS:  Thank you all for your corrections of the various typos and so on.  You have all had copies of the judgment.  For the reasons given in it, this claim is dismissed.  
MR NICHOLLS:  My Lord, I appear on behalf of the First Secretary of State this morning.  Thank you very much for your Lordship's judgment.  May I ask for an order that the Council pay the First Secretary of State's costs?  
MR KEEN:  My Lord, I appear on behalf of the Council this morning.  I cannot and do not oppose that application by the First Secretary of State.  I do though have an application in respect of permission to appeal.  
MR JUSTICE COLLINS:  Let us deal with things one at a time.  So far as costs are concerned, yes, presumably to be subject to a detailed assessment if not agreed.  Yes, Mr Keen?  
MR KEEN:  My Lord, I apply for permission to appeal in respect of all of the seven grounds.  If I can start firstly with the main ground ‑‑ your judgment on ground one ‑‑ that the Crown immunity should extend to (inaudible) carried out on the contract of the Crown.  My Lord, in my submission, that judgment and the conclusion on that point is a novel and important point.  It has always been assumed previously that development under a private interest, even though there is a superior Crown interest, requires permission, and therefore the issue raised by ground one, My Lord, namely whether the developments have been carried out for and on behalf of the Crown, and is therefore immune from planning control, is a point of general public interest and importance because, my Lord, it addresses the limits of Crown immunity.  In contrast, the one statutory procedure under Circular 18/84 does not provide the same enforcement mechanisms and does not protect the public interests as would effective planning control.
MR JUSTICE COLLINS:  But section 299A does not provide any more protection, does it, than the protection ‑‑ when I say protection I mean the enforcement provisions ‑‑ than does the extra statutory procedure? 
MR KEEN:  My Lord, the decision being in one respect you have the remedy under the Town and Country Planning Act; the other the (inaudible) judicial review for the reasons submitted.
MR JUSTICE COLLINS:  Not necessarily judicial review.  There is of course the procedure under the agreement, but in any event, it may be that the route is different, but the effect is surely the same, is it not? 
MR KEEN:  The effect is less secure for the Council because of the enforcement mechanism and the need to rely upon the 299A agreement as opposed to having the normal enforcement agreement ‑‑ 
MR JUSTICE COLLINS:  Yes, but 299A bites on an agreement and there has to be an agreement.  So what is the difference between a 299 and an extra statutory in terms of enforcement?
MR KEEN:  My Lord, the mechanism is different. 
MR JUSTICE COLLINS:  The mechanism may be different but the effect is the same, is it not? 
MR KEEN:  It is the claimant's position, my Lord, the effect is less comprehensive and less good for the Council in this case, and, my Lord, therefore there are important and controversial issues that arise in relation to the first issue in relation to Crown immunity, and it is the Council's case that there is, firstly, a real prospect of success of persuading the Court of Appeal that the Council is right that the use of the Circular 18/84 procedure was unlawful in this case, but secondly, my Lord, there is also a compelling reason, namely that the issue is one of general public importance and that the implications reach beyond this case.  There are, of course, other such centres proposed and indeed other development of Crown land.  
My Lord, as far as the other six grounds are concerned, I can deal with these swiftly.  In your judgment, in effect your Lordship dismissing each of the other six, again raises consequences which are, in my submission, plainly much wider than the implications for this case alone.  
MR JUSTICE COLLINS:  You are really basing this on ground one, are you not?  Do you say that any of the other grounds by themselves would justify an appeal if I was against you on ground one? 
MR KEEN:  My Lord, I do, although I submit that ground one is plainly the major ground.  But in respect of the others, they raise matters of public importance to differing degrees, for example the circumstances when it is necessary to consider alternative sites: the issue as to how the First Secretary of State addressed the Home Office Accommodation Centre Policy in terms of providing centres in non‑urban locations, and also by way of example, the definition of curtilage that your Lordship has reached.  They are all matters upon which the claimant says there are real prospects of success on appeal, and to differing degrees they raise important implications in planning context, and beyond such that there should be leave to appeal.  My Lord, unless I can assist you further on any specific grounds?
MR JUSTICE COLLINS:  No, thank you. 
MR NICHOLLS:  My Lord, I oppose this application.  The language of your Lordship's judgment makes it quite clear that none of these arguments have any real prospect of success.
MR JUSTICE COLLINS:  All you could say is that I formed some clear views but I can always be wrong.
MR NICHOLLS:  One recognises, of course, that sometimes judges express themselves with more or less certainty, but from your Lordship's perspective, the certainty and clarity of the views you expressed make it clear that you are of the view that this has no real prospect of success.  My friend suggests that the point in relation to Crown immunity is one of general public importance.  It does not present itself in that way to your Lordship ‑‑ 
MR JUSTICE COLLINS:  I did not really regard myself as breaking particularly new ground.  It seemed to me that I was following Dumbarton.  
MR NICHOLLS:  Precisely so.  My Lord, I say on both grounds: lack of a real prospect of success and no other reasons which would justify permission to appeal, if my friend is going to seek permission, he ought to ask the Court of Appeal, and I would respectfully ask you to refuse permission today. 
MR WARREN:  My Lord, I adopt those arguments with respect to my learned friend, Mr Nicholls.  In particular, I adopt the submission that your Lordship's judgment on ground one is based purely on established case law, some of which goes back 50 years, and it is an irony of the case that exactly this point was made by my learned friend, Mr Elvin, in resisting the permission application in the Hillingdon case when he referred to Portus (1949).  Of course, the matter is of public interest but the point is secure on established case law and clear in your Lordship's judgment.  On that basis, I submit that there is no real prospect of success on it.  The same goes, in my submission, for grounds two to seven, which are, as it were, traditional JR grounds which your Lordship has found clearly against the claimant on the facts of the case.  So for those two reasons, My Lord, I too oppose permission being granted by your Lordship.
MR KEEN:  My Lord, there are plainly distinguishing factors as submitted by Mr Elvin in the substantive hearing of this matter.  My learned friend refers to Hillingdon but, of course, your Lordship will be aware there that there were no private rights granted until the development was implemented.  
MR JUSTICE COLLINS:  I appreciate that that was said to be the distinction.  
MR KEEN:  Exactly, you have the point.  My Lord, but I go back to the submission that this is plainly a matter of general public interest and importance and for that reason it ought to go to the Court of Appeal and have them look at this novel point.   
MR JUSTICE COLLINS:  Thank you.  No, I do not think this is an appropriate case to grant leave to appeal.  It seems to me that I was not in fact breaking any new ground in the decision that I have reached.  Two to seven depended and depend upon the facts of the case; one is merely following established case law.  I appreciate, of course, that there is intense public feeling about this case, but that in itself is no good reason to grant leave to appeal.  It is only if I take the view that there is a compelling reason ‑‑ and it must be a matter of law rather than of public interest in the case ‑‑ that gives rise to such a reason for the Court of Appeal to consider the matter, or of course that there is a real prospect of success.  I am afraid I take the view that neither is established here.  Of course, this is not the end of the line.  If the claimants feel that I am wrong, they can apply to the Court of Appeal and the Court of Appeal will decide whether it is an appropriate case for permission.
MR KEEN:  My Lord, I have one further application which is for an extension of time to file the notice.
MR JUSTICE COLLINS:  Having regard to the imminence of Easter that does not seem to be unreasonable.  How long are you asking for?  
MR KEEN:  28 days instead of the 14, my Lord, although there is, as you say, Easter but also the fact that the Council has to go through its decision‑making process. 
MR JUSTICE COLLINS:  I understand that.  On the other hand, there has been a considerable delay as a result of these proceedings in the progress in what, I think, is regarded, or at least I am told is regarded, as a rather important development.  We have Easter next week so you are really out a week.  I think it is reasonable to give you 21 days.