The Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, a case concerned with an immigration decision, considered Article 3.1 of the United Nations Convention on the Rights of the Child. This requires all relevant authorities to treat “the best interests of the child” as a “primary consideration”. Section 11 of the Children Act 2004 gives effect to this by providing that local authorities (together with other specified bodies) must make arrangements for ensuring their functions are discharged having regard to the need to safeguard and promote the welfare of children.
This led the court in R (on the application of Sheridan) v Basildon District Council [2011] EWHC 2938 (Admin) to conclude that there was a duty on the local planning authority in that case, when considering – in the context of Article 8(2) of the ECHR – whether to enforce planning control, to have regard to the best interests of the children involved as a primary consideration. This requirement was also an issue subsequently in Collins v Secretary of State for Communities and Local Government [2012] EWHC 2760 (Admin).
Now it has featured once more in a planning case, namely Moore v Secretary of State for Communities and Local Government [2012] EWHC 3192 (Admin). There the claimant, a Romany gypsy traveller in poor health, sought to quash the decision of an inspector on appeal refusing, inter alia, temporary planning permission for a change of use of land she occupied in the green belt to use as a traveller’s caravan site on the ground that it was Wednesbury unreasonable. (Injunction proceedings brought by the local planning authority had in the meantime been stayed.) The court held that it was, and quashed the inspector’s decision in that respect.
The court concluded that the inspector had recognised that the health and education of the claimant’s three young children were important factors. However, it was incumbent upon the inspector, for the purposes of the balancing exercise required under Article 8(2) of the ECHR, to make clear findings as to what would happen in this case once the claimant was evicted and, in particular, whether it was more likely than not that she and her children would have to move to a roadside existence or whether, alternatively, they would be offered accommodation on a suitable alternative site. Accordingly, his decision to refuse temporary planning permission could not stand.
John Martin is a freelance writer
