Planning permission – Gypsies – Children – Planning permission refused for use of land as residential traveller caravan site – Whether respondent erring in refusing to grant temporary permission – Whether failing to take best interests of children into account as a primary consideration – Appeal dismissed
The appellant was one of a group of 78 travellers, including 39 children, who had lived since November 2009 in caravans on a site near Blackpool. That use of the land was the subject of an enforcement notice and a refusal of planning permission by the local council. The respondent secretary of state dismissed appeals against those decisions on the recommendation of his planning inspector made after a public inquiry.
In his report, the inspector accepted that dismissing the appeal was likely to leave the traveller families without a permanent bas, resulting in them having to resort to a roadside existence. He found that considerable weight should be accorded to the unmet need for gypsy and traveller sites in the area and the strong personal need for the travellers to have a settled base from which to access work, education and medical and other services. He none the less concluded that, having particular regard to the effect on the landscape, visual amenity and highway safety, the overall balance did not justify the grant of permanent planning permission for the development. He found that a grant of temporary permission could not be justified, even if the unmet need for sites were given substantial weight, since it was not clear that planning circumstances would change at the end of a defined period in such a way as to give rise to a reasonable likelihood of an alternative site being available.
The appellant brought claims under sections 288 and 289 of the Town and Country Planning Act 1990 to challenge the legality of the respondent’s decision. Under section 288, he challenged the decision not to grant a temporary permission and contended that the best interests of the children had not properly been taken into account, as was required by Article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC). It was common ground that the inspector had not referred to the children’s best interests in his decision and that the decision had preceded recent planning case law on the subject.
Dismissing the claims in the court below, the judge held that, while the decision had not referred in terms to the best interests of the children, the correct approach had none the less been followed as a matter of substance: see [2012] EWHC 2760 (Admin).
Held: The appeal was dismissed.
Planning decisions should have regard to the principle in Article 3(1) of the UNCRC that, in all decisions concerning children, their best interests had to be treated as a primary consideration. Moreover, relevant rights to family or private life under Article 8 of the European Convention on Human Rights fell to be taken into account within the statutory planning framework as material considerations that could potentially outweigh any incompatibility with the development plan. Where the Article 8 rights of a child were engaged, the best interests of the child could, and should, be taken into consideration in the Article 8 analysis: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166 and Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] 2 EGLR 8 applied. In a planning context, the child’s best interests were likely to be consistent with those his parent or other carer who was involved in the planning decision-making process such that, unless circumstances indicated to the contrary, the decision-maker could assume that the carer would properly represent the child’s best interests. It was highly unlikely that a planning decision-maker would need to hear directly from any children affected by the decision. The child’s wishes, and matters relating to the child’s best interests generally, would normally be conveyed sufficiently through evidence from other sources, including social enquiry reports and the evidence of parents or carers. Although decision-makers had to be equipped with sufficient evidence on which to make a proper assessment of the child’s best interests, they were entitled to assume, at least in a case where the applicant was professionally represented, that the relevant evidence has been placed before them unless something showed the need for further investigation. If it was thought that the issue had not been adequately addressed by the parties, they could be invited to give further consideration to it. However, it would not usually be necessary for decision-makers to make their own enquiries as to evidence that might support the child’s best interests: Stevens applied.
The decision in the instant case had considered all the matters relevant to Article 8 in detail in the course of the reasoning that led to the view that neither permanent nor temporary planning permission was justified. The view was then taken, with due regard to those matters, that such a refusal would be a proportionate interference with the Article 8 rights of the occupiers of the site. It was apparent from that reasoning that the decision in relation to temporary permission factored in all the points already considered in relation to permanent permission, as well as taking into account the specific additional considerations relevant to the question of temporary permission. Whether the best interests of the children were taken properly into account in the overall exercise was a question of substance, to be answered by reference to the detailed reasoning of the decision letter as a whole, including the passages of the inspector’s report to which it referred. The children’s best interests had been properly taken into account in that decision. In substance, the respondent was of the view that the best interests of the children coincided with those of their families as a whole and lay in remaining on the site, because of the general advantages of a settled home and because of the particular considerations of continuity of education and access to health care, but that the children’s best interests and the other factors telling in favour of the grant of planning permission were outweighed by the harm that would be caused by such a grant. The allocations of weight to the various individual factors, and the carrying out of the overall balancing exercise, were consistent with treating the children’s best interests as a primary consideration throughout. Those best interests were not necessarily determinative and could properly be found to be outweighed by the identified harm.
The guidance in Circular 01/2006 was that a temporary permission might be justified where planning circumstances were expected to change in a particular way at the end of the period of the temporary permission. The inspector had found that it was not reasonably clear that the planning circumstances would change so as to lead to a reasonable likelihood of an alternative site being available at the end of a defined period. There was no other feature of the case that might have justified the grant of temporary permission in the event of permanent permission being refused.
Stephen Cottle (instructed by Lester Morrill Solicitors, of Leeds) appeared for the appellant; Rupert Warren QC (instructed by the Treasury Solicitor) appeared for the respondent; the council did not appear and were not represented.
Sally Dobson, barrister
Collins v Secretary of State for Communities and Local Government and another
Planning permission – Gypsies – Children – Planning permission refused for use of land as residential traveller caravan site – Whether respondent erring in refusing to grant temporary permission – Whether failing to take best interests of children into account as a primary consideration – Appeal dismissedThe appellant was one of a group of 78 travellers, including 39 children, who had lived since November 2009 in caravans on a site near Blackpool. That use of the land was the subject of an enforcement notice and a refusal of planning permission by the local council. The respondent secretary of state dismissed appeals against those decisions on the recommendation of his planning inspector made after a public inquiry.In his report, the inspector accepted that dismissing the appeal was likely to leave the traveller families without a permanent bas, resulting in them having to resort to a roadside existence. He found that considerable weight should be accorded to the unmet need for gypsy and traveller sites in the area and the strong personal need for the travellers to have a settled base from which to access work, education and medical and other services. He none the less concluded that, having particular regard to the effect on the landscape, visual amenity and highway safety, the overall balance did not justify the grant of permanent planning permission for the development. He found that a grant of temporary permission could not be justified, even if the unmet need for sites were given substantial weight, since it was not clear that planning circumstances would change at the end of a defined period in such a way as to give rise to a reasonable likelihood of an alternative site being available.The appellant brought claims under sections 288 and 289 of the Town and Country Planning Act 1990 to challenge the legality of the respondent’s decision. Under section 288, he challenged the decision not to grant a temporary permission and contended that the best interests of the children had not properly been taken into account, as was required by Article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC). It was common ground that the inspector had not referred to the children’s best interests in his decision and that the decision had preceded recent planning case law on the subject.Dismissing the claims in the court below, the judge held that, while the decision had not referred in terms to the best interests of the children, the correct approach had none the less been followed as a matter of substance: see [2012] EWHC 2760 (Admin).Held: The appeal was dismissed. Planning decisions should have regard to the principle in Article 3(1) of the UNCRC that, in all decisions concerning children, their best interests had to be treated as a primary consideration. Moreover, relevant rights to family or private life under Article 8 of the European Convention on Human Rights fell to be taken into account within the statutory planning framework as material considerations that could potentially outweigh any incompatibility with the development plan. Where the Article 8 rights of a child were engaged, the best interests of the child could, and should, be taken into consideration in the Article 8 analysis: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166 and Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin); [2013] 2 EGLR 8 applied. In a planning context, the child’s best interests were likely to be consistent with those his parent or other carer who was involved in the planning decision-making process such that, unless circumstances indicated to the contrary, the decision-maker could assume that the carer would properly represent the child’s best interests. It was highly unlikely that a planning decision-maker would need to hear directly from any children affected by the decision. The child’s wishes, and matters relating to the child’s best interests generally, would normally be conveyed sufficiently through evidence from other sources, including social enquiry reports and the evidence of parents or carers. Although decision-makers had to be equipped with sufficient evidence on which to make a proper assessment of the child’s best interests, they were entitled to assume, at least in a case where the applicant was professionally represented, that the relevant evidence has been placed before them unless something showed the need for further investigation. If it was thought that the issue had not been adequately addressed by the parties, they could be invited to give further consideration to it. However, it would not usually be necessary for decision-makers to make their own enquiries as to evidence that might support the child’s best interests: Stevens applied.The decision in the instant case had considered all the matters relevant to Article 8 in detail in the course of the reasoning that led to the view that neither permanent nor temporary planning permission was justified. The view was then taken, with due regard to those matters, that such a refusal would be a proportionate interference with the Article 8 rights of the occupiers of the site. It was apparent from that reasoning that the decision in relation to temporary permission factored in all the points already considered in relation to permanent permission, as well as taking into account the specific additional considerations relevant to the question of temporary permission. Whether the best interests of the children were taken properly into account in the overall exercise was a question of substance, to be answered by reference to the detailed reasoning of the decision letter as a whole, including the passages of the inspector’s report to which it referred. The children’s best interests had been properly taken into account in that decision. In substance, the respondent was of the view that the best interests of the children coincided with those of their families as a whole and lay in remaining on the site, because of the general advantages of a settled home and because of the particular considerations of continuity of education and access to health care, but that the children’s best interests and the other factors telling in favour of the grant of planning permission were outweighed by the harm that would be caused by such a grant. The allocations of weight to the various individual factors, and the carrying out of the overall balancing exercise, were consistent with treating the children’s best interests as a primary consideration throughout. Those best interests were not necessarily determinative and could properly be found to be outweighed by the identified harm.The guidance in Circular 01/2006 was that a temporary permission might be justified where planning circumstances were expected to change in a particular way at the end of the period of the temporary permission. The inspector had found that it was not reasonably clear that the planning circumstances would change so as to lead to a reasonable likelihood of an alternative site being available at the end of a defined period. There was no other feature of the case that might have justified the grant of temporary permission in the event of permanent permission being refused.Stephen Cottle (instructed by Lester Morrill Solicitors, of Leeds) appeared for the appellant; Rupert Warren QC (instructed by the Treasury Solicitor) appeared for the respondent; the council did not appear and were not represented.Sally Dobson, barrister