Town and country planning – Human rights – Children – Mobile homes – Planning permission refused for retention of residential mobile home pitches on land in countryside – Whether first defendant’s inspector attaching proper importance to interests of children living on site – Whether properly considering issue of proportionality in relation to Article 8 of European Convention on Human Rights – Claim dismissed
The claimant applied to the second defendant council for planning permission for the retention of 22 mobile homes used for residential purposes and hard standing on land in the countryside near Wokingham. The second defendants had previously issued two enforcement notices in respect of that development, requiring cessation of the residential use and the removal of 22 areas of hard standing, along with the services and utilities associated with the development and all associated debris, and restoration of the land to its condition before the breach of planning control took place. The claimant’s appeals against the enforcement notices had been dismissed in 2011 and the notices had taken effect, with the period for compliance ending in June 2015. The second defendants also rejected the application for planning permission and, in February 2015, that decision was upheld by the first defendant’s planning inspector.
In reaching her decision, the inspector found that the contribution that the development would make to meeting housing needs was not of sufficient weight to overcome the planning objections arising from its failure to deliver a good quality standard of development in an appropriate location, contrary to the development plan and the National Planning Policy Framework (NPPF). She considered that the residents’ right to respect for their home under Article 8 of the European Convention on Human Rights was engaged since, if the appeal was dismissed, the enforcement notices would continue to have effect and the residents would probably not be able to continue living in their homes. However, after considering the interests of residents and their children, she concluded that the interference with their private rights was necessary and proportionate when balanced against the wider public interest and that it was not appropriate to grant either a permanent or temporary permission.
The claimant brought proceedings under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision. He contended that the inspector, when considering the issue of proportionality, had attached insufficient importance to the impact of her decision on the children living on the site.
Held: The claim was dismissed.
The inspector had not erred in her approach to considering the interests of the children on the site. She was aware of the principle that, in all decisions concerning children, the interests of those children had to be of primary importance. Reading the decision letter as a whole, the inspector had made the best interests of the children a primary consideration. The interests of the children had substantial weight as a social policy factor, in the sense that no other consideration exceeded that factor as a starting point, but that position was not fixed for all time. There then had to be an evaluation of the individual circumstances of those interests and other factors needed to be considered and assessed. The eventual judgment would be the result of the relative weighting that an inspector gave to all the circumstances of the case. Therefore, while the best interests of a child should be given primary importance as a matter of policy and should be at the forefront of the decision-maker’s mind, it might be that, on investigating and assessing the individual circumstances of the case, other factors might equal or exceed the best interests of the child in terms of weight: Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] 2 EGLR 145; [2013] EGILR 8, AZ v Secretary of State for Communities and Local Government [2012] EWHC 3660 (Admin); [2013] PLSCS 8 and HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25 applied.
The inspector had considered the material issues as different strands of the planning judgment which she eventually had to make. She had considered the interests of the children in relation to housing need, the advantages of stability and the benefits of the particular site before expressly considering the issue of human rights. She had conducted a proportionality assessment in relation to each household, taking a very thorough approach that set out her reasoning prior to reaching a judgment in respect of each of them. That was a paradigm example of the approach that a decision-maker should follow. The inspector had started with an acknowledgment of the importance of the interests of the children and then made an individual assessment of each household, and had given clear and adequate reasons for her decision.
The inspector had not erred in refusing to grant a temporary permission. She had been entitled to conclude that a temporary period would have the same function that the extended compliance period under the enforcement notices was meant to offer and that, at the end of a limited period, the circumstances would probably remain similar to those at the time of her consideration. While she had not gone through the same individual assessment of each household as she had done in respect of a permanent planning permission, she knew that the issue of the best interests of the children remained a live issue. She had been entitled to conclude that a time-limited permission was not an acceptable solution when balanced against the wider public interest and, in coming to that conclusion, she had had regard to the best interests of the children on site as part of the home and family life to which she expressly referred.
The inspector’s decision could not be described as irrational given her findings that the development resulted in harm in terms of landscape character, visual impact, biodiversity, public transport, an inability to address the objections to the development by planning conditions, conflict with the development plan and the NPPF and failure to contribute in a positive way to the economic and environmental dimensions of sustainable development. Her scrutiny of the social dimension of sustainable development was also sound. She had not failed to engage with Article 8 or erred in her consideration of proportionality. She had been aware that Article 8 was engaged and had applied the appropriate consideration to it. Given the wide margin of appreciation to be accorded to her conclusion, there were no grounds for the court to interfere: Stevens applied.
Anthony Crean QC and Michael Rudd (instructed by Hawksley’s Solicitors, of Blackwater) appeared for the claimant; Stephen Whale (instructed by the Government Legal Department) appeared for the first defendant; the second defendants did not appear and were not represented.
Sally Dobson, barrister
Read a transcript of Cash v Secretary of State for Communities and Local Government and another here
