Travellers – Area of outstanding natural beauty (AONB) – Human rights – Claimants appealing against refusal of temporary planning permission for stationing of residential mobile home – Whether planning inspector properly addressing claimants’ right to family life – Whether inspector balancing unmet need for alternative sites against harm to AONB – Application granted
The claimant new travellers owned land in an area of outstanding natural beauty (AONB) upon which two caravans were sited. The claimants applied for temporary planning permission for a change of use for the stationing of a residential mobile home for three years. The second defendant local authority refused to grant permission and the claimants appealed to the first defendant.
The first defendant inspector’s dismissed the claimants’ appeal. He concluded that, although the claimants were travellers for the purposes of a planning policy whose proposals represented a sustainable form of gypsy/traveller site development, the residential use of the land would significantly detract from the secluded woodland location and the proposed change of use would damage to the character and appearance of the AONB. It would thereby conflict with the environmental planning policy for the area.
The claimants applied, under section 288 of the Town and Country Planning Act 1990, to quash that decision. They challenged: (i) the way in which the inspector had addressed their rights under Article 8 of the European Convention on Human Rights by treating those rights as any other material consideration, rather than as a separate matter; and (ii) his treatment of the balance to be struck between the need for travellers’ sites, which supported the grant of permission, and the harm done to the AONB.
Held: The application was granted.
(1) Although the inspector had to address Article 8 rights, the law did not require a formula to be applied to decision making whereby one stood back after a decision had been formulated to ask whether Article 8 required a different answer. The fundamental question was whether, looking at the decision as a whole, the Article 8 rights had been addressed appropriately: South Cambridgeshire District Council v O’Brien [2008] EWCA Civ 1159; [2008] PLSCS 287; McCarthy v Secretary of State for Communities and Local Government [2006] EWHC 3287 (Admin); and Lough v First Secretary of State [2004] EWHC 23 (Admin); [2004] 3 PLR 38 considered.
One could not read the two-stage test advanced in R (on the application of Samaroo) v Secretary of State for the Home Department [2001] EWCA Civ 1139 across into the planning context. The issue of the effect upon the claimants’ Article 8 rights could not be addressed outwith the consideration of the planning merits generally. Provided that the decision maker carried out a proper balancing exercise, the proportionality test would be met.
In the instant case, looking at the decision letter as a whole, the inspector had, in terms of his treatments of Article 8 rights, fully considered the claimants’ circumstances and was entitled to conclude that the appeal should be dismissed, such dismissal being proportionate to safeguard the legitimate aim of conserving the natural beauty of the area. It did therefore not violate the claimants’ Article 8 rights.
(2) However, the first defendant had recognised that a temporary development was less harmful than a permanent development. In the instant case, the inspector had failed to consider, in accordance with paras 45-46 of Circular 1/2006, whether there was a reasonable expectation that new sites would become available in the area to meet the need for alternative sites at the end of the period for which any temporary permission was granted. Furthermore, the inspector had not addressed the important question of the effect of his apparently implied conclusion that the second defendants had failed to comply with national and regional policy selecting sites to meet the identified need, even though that question had been expressly raised in evidence before him.
With regard to the AONB point, the inspector had adopted the approach of considering whether the harm done to the AONB would be outweighed by the considerations that supported the proposal, which relied principally upon the case of need that had been advanced. Accordingly, the defects in the inspector’s reasoning and in the treatment of the claimants’ case could not be set aside.
Stephen Cottle (instructed by Community Law Partnership, of Birmingham) appeared for the claimant; Katherine Olley (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendant did not appear and were not represented.
Eileen O’Grady, barrister
