The claimant in Cash v Secretary of State for Communities and Local Government [2015] EWHC 2357 (Admin) failed in his attempt to quash the decision of an inspector, on appeal, refusing retrospective planning permission for the stationing of 22 mobile homes on land for residential purposes. His principal ground of challenge had been that the inspector had erred in law in her approach to the interests of the children living on the appeal site. The case provides a useful reminder of the relevant principles that apply, in such an instance, in planning cases.
Article 8(1) of the ECHR provides that everyone has a right to respect for his private and family life, his home and his correspondence. However, Article 8(2) permits interference by a public authority with that right where such interference is (a) lawful and (b) necessary in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This, therefore, introduces the requirement for a proportionality assessment.
A further dimension is added where the Article 8 rights are those of a child, because Article 3.1 of the United Nations Convention on the Rights of the Child requires all relevant authorities to treat “the best interests of the child” as a “primary consideration”. This provision was considered by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, a case concerned with an immigration decision. 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.
In Collins v Secretary of State for Communities and Local Government [2013] EWCA Civ 1193, Richards LJ explained how these principles apply against the statutory framework for making planning decisions. He stated: “It is well established that relevant rights to family or private life under Article 8 fall to be taken into account as other material considerations [for the purposes of section 70(2) of the Town and Country Planning Act 1990] and can be properly accommodated in that way within the decision-making process. Where the Article 8 rights of a child are engaged, the best interests of the child can and should be taken into consideration in the Article 8 analysis…”
John Martin is a planning law consultant
