Article 3.1 of the UNCRC, which requires all relevant authorities to treat “the best interests of the child” as a “primary consideration”, was considered by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. Baroness Hale held that it obliged an authority, in any relevant case, to consider the best interests of the child first. However, she went on to state that, provided the authority did not treat any other consideration as inherently more significant than the best interests of the child, it could still conclude that the strength of other considerations outweighed them. (It is judicially accepted that the principle in ZH (Tanzania) applies also in the planning context.)
In Dear v Secretary of State for Communities and Local Government [2015] EWHC 29 (Admin) the claimant, a gypsy, sought to quash the decision of the secretary of state on appeal refusing to grant her retrospective planning permission for the use of land in the green belt for keeping horses and as a residential caravan site. It was accepted that the proposed development was inappropriate development and so, by definition, harmful to the green belt.
One of her grounds of challenge was that the secretary of state had erred in law in that he had treated the harm to the green belt as inherently more weighty than the best interests of the children living on the land, in breach – inter alia – of Article 3(1) of the UNCRC. (It was also accepted that without planning permission, the claimant and her family were likely to move around, effectively living by the roadside.)
The court dismissed that ground. Applying ZH (Tanzania), the best interests of the claimant’s children had to be a primary consideration but that was not the same as being the primary consideration. In his decision letter, the secretary of state had concluded that the best interests of the children were a primary consideration and so he had applied the correct test.
He had, however, in his final conclusion adopted the reasoning of his inspector and given modest weight to the family’s personal circumstances. On the basis of earlier authorities, this he was entitled to do. It was settled law that, provided the decision maker ascribes the correct weight at the outset, in carrying out any adjustment to the weighting when considering the individual circumstances of the case he was entitled to reduce the weight on one side of the balance, or increase the weight on the other.
John Martin is a planning law consultant
