Gypsies – Human rights – Right to respect for private and family life – Appellants purchasing land in area of outstanding natural beauty – Planning permission refused for siting of residential caravans on site – Inspector finding no interference with home where appellants not yet resident on appeal site – Whether inspector erring in view that Article 8 not engaged – Whether consideration of Article 8(2) would have affected outcome of decision – Appeal dismissed
The appellant gypsies purchased two adjoining plots of land in respect of which they applied for planning permission for a change of use to a residential caravan site. The second respondent local planning authority refused the application and the appellant appealed to the first respondent’s inspector. Meanwhile, they continued to live elsewhere; at the date of the appeal hearing, they were living in a caravan in a roadside lay-by. The inspector considered various factors, including: (i) the need for a site to accommodate the appellants and for additional gypsy sites in that area generally; and (ii) the importance of stability from the point of view both of health and the education of the second appellant’s children. However, dismissing the appeal, he concluded that such considerations did not outweigh the harm that the development would cause to the character and appearance of the area, which lay within an area of outstanding natural beauty. He found that, because they did not live on the appeal site, there was no interference with the appellants’ right to respect for their homes under Article 8 of the European Convention on Human Rights.
The appellants challenged the inspector’s decision under section 288 of the Town and Country Planning Act 1990. They contended that: (i) he had erred in finding that Article 8 was not engaged because they did not already live on the appeal site; and (ii) he did not appear to have considered the effect of a refusal of planning permission on their right to private and family life. The judge upheld the inspector’s decision, holding that he had taken the correct approach, and that even if, contrary to that view, there was a wider interference with private and family life, it would have made no difference to the inspector’s decision: see [2008] EWHC 2937 (Admin); [2008] PLSCS 299. The appellants appealed.
Held: The appeal was dismissed.
The inspector and the judge had erred in finding that Article 8 was not in issue if the appellants had not moved onto the appeal site. If that approach were correct, a person who unlawfully occupied a site without first obtaining planning permission would be in a better position than someone who, as with the appellants, lived elsewhere while their application was being decided. Such an unsatisfactory result should not arise unless the authorities compelled it. They did not: Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18, Connors v United Kingdom 66746/01 [2004] 4 PLR 16, Chichester District Council v First Secretary of State [2004] EWCA Civ 1248; [2005] 3 PLR 39 and Harrow London Borough Council v Qazi [2003] UKHL 43; [2003] 3 EGLE 109 considered.
It was artificial to dissociate the physical home from private and family life, all of which required respect and were to a large extent inseparable. “Home” did not mean only fixed bricks-and-mortar accommodation but could include a mobile home. Therefore, it was not the case that, because they did not already live on the appeal site, the appellants had no home or private life with which to interfere. The caravan was their home, in which they carried on their private life. By denying them a stable base for the caravan on the land that they owned, the refusal of planning permission infringed their Article 8 rights, whether or not the caravan was stationed on the land in respect of which the appellants sought a change of use. That conclusion did not require the imposition of a positive rather than a negative obligation on the planning authorities.
However, the inspector would have reached the same conclusion on the planning appeal even if he had found Article 8 to be engaged. The concept of proportionality was inherent in the approach to decision making in planning law, and the inspector had weighed as planning considerations all the factors that would have had to be weighed in carrying out the balancing exercise under Article 8(2). The fact that he had not appreciated that Article 8 applied did not alter the result: Lough v First Secretary of State [2004] EWCA Civ 905; [2004] 1 WLR 2557 applied.
David Watkinson (instructed by South West Law Ltd) appeared for the appellant; Gordon Nardell and Colin Thomann (instructed by the Treasury Solicitor) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
