In every case where planning permission is refused for the use of land as a residential gypsy caravan site, the question of whether Article 8(1) of the European Convention on Human Rights (ECHR) is engaged in challenges against the refusal will have to be addressed. If it is engaged, the balancing exercise required by Article 8(2) of the ECHR will have to be carried out.
Article 8(1) provides that everyone has the right to respect for his private and family life, his home and his correspondence. Article 8(2) allows interference by a public authority with the exercise of that right where the interference accords with the law and is necessary in a democratic society in the interests of a number of defined aims.
In Rafferty v Secretary of State for Communities and Local Government [2009] EWCA Civ 809; [2009] 31 EG 72 (CS) the applicants, who were Romany gypsies, had applied unsuccessfully for planning permission to change the use of two adjoining plots of land purchased by them in the countryside (within an area of outstanding natural beauty AONB)) to use as a residential caravan site. Their appeal to the secretary of state was equally unsuccessful.
The inspector held that the harm that the development would cause to the character and appearance of the area outweighed other material considerations. The objectives of the ANOB could be adequately safeguarded only by the refusal of planning permission. He also held that there was no interference with the applicants’ rights under Article 8(1) because throughout they had not been living on the plots of land. (They were encamped in their caravans in a lay-by, which was necessarily unlawful and unstable.) Dismissal of their appeal would not cause the loss of their home.
The applicants challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990, but their challenge failed. Their subsequent appeal to the Court of Appeal was dismissed, but the court decided that both the inspector, and the judge at first instance, had erred in finding that Article 8(1) was not engaged if the applicants had not moved onto the land.
The court found untenable, on the basis of decided authorities, the proposition that a person who unlawfully occupies a site without first obtaining planning permission will be in a better position – with regard to Article 8(1) – than someone who lives elsewhere while their application is being decided. (In the present case, there was no doubt that if the appellants had occupied their caravans on the plots of land without planning permission Article 8(1) would have become engaged.) Furthermore, it was not the case that, because they did not already live on the land, the appellants had no home or private life with which to interfere. By denying them a stable base for their caravans on the land that they owned, the refusal of planning permission infringed their Article 8(1) rights.
However, the court held that the inspector would have reached the same conclusion on the planning appeal, even if he had found Article 8 to be engaged. The inspector had weighed, as planning considerations, all the factors that would have had to have been weighed in carrying out the balancing exercise under Article 8(2).
The notable point is that the Court of Appeal was prepared to take a wide view of the ambit of Article 8(1).
John Martin is a freelance writer
