Green belt – Development — Caravan site — Claimant gypsy occupying agricultural land in green belt with young children – Claimant applying for retrospective planning consent – Local authority refusing planning permission — Planning inspector appointed dismissing claimant’s appeal — Claimant seeking to quash decision — Whether inspector adopting right approach to best interests of children – Claim dismissed
The claimant and her family were gypsies, who lived in caravans as an integral part of their ethnic identity. Since mid-2009, the claimant had lived with her partner and extended family, including several children, on a plot of agricultural land, divided off from open paddock land, which they had developed into a caravan site with a stable block. Two young children in the group attended a local primary school.
On 22 May 2009, the claimant applied to the second defendant planning authority for retrospective planning consent for use of the land as a single family caravan site. The site abutted a conservation area and was located within a green belt. As such, it had been the subject to central government guidance. The claimant conceded that the change of use constituted an inappropriate development, resulting in a loss of openness. She also accepted that the site was not suitable, in planning terms, as a permanent base for her extended family. Consequently, she applied for temporary for a period of four years. The claimant’s application was refused and the second defendants issued an enforcement notice, requiring cessation of use as a caravan site and permanent removal of all caravans etc within three months.
The claimant appealed against both the refusal of planning permission and the enforcement notice. Following a hearing and a site visit, an inspector appointed by the first defendant issued a decision refusing both appeals but extending the period for compliance to a year.
The claimant sought an order under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision dismissing the claimant’s appeal against the refusal of retrospective planning permission but did not challenge the enforcement notice. The claimant contended, inter alia, that the inspector had erred in her approach to the rights and interests of the children. In balancing the public interest and private rights the inspector, as a public body, had been required to consider whether the dismissal of the appeal would have a disproportionate adverse effect on the claimant’s children. Had she given proper weight to those interests, she might have decided differently.
Held: The claim was dismissed.
(1) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making would often engage article 8 of the European Convention on Human Rights and relevant article 8 rights would be a material consideration which the decision-maker had to take into account. Where the article 8 rights were those of children, they had to be seen in the context of article 3 of the United Nations Convention on the Rights of the Child (UNCRC), which required a child’s best interests to be a primary consideration. That required the decision-maker, first, to identify what the child’s best interests were. In a planning context, they were likely to be consistent with those of his parent or other carer involved in the planning decision-making process; and, unless circumstances indicated to the contrary, the decision-maker could assume that that carer would properly represent the child’s best interests and the potential adverse impact of any decision upon those interests. Once identified, although a primary consideration, the best interests of the child were not determinative of the planning issue. Nor did respect for the best interests of a relevant child mean that the planning exercise necessarily involved merely assessing whether the public interest in ensuring planning controls was maintained outweighs the best interests of the child. Most planning cases would have too many competing rights and interests, and would be too factually complex, to allow such an exercise.
However, the best interests of any child had to be kept at the forefront of the decision-maker’s mind as he examined all material considerations in the exercise of his planning judgment. When considering any decision he might make, he had to assess whether the adverse impact of a decision on the interests of the child was proportionate.
(2) In terms of the proper approach of the court when dealing with a section 288 application in which article 8 was engaged, the application did not require a full merits review but a review on traditional judicial review grounds, together with consideration of whether the resulting decision engaged article 8 and, insofar as it did, whether the adverse impact of the decision on the article 8 rights engaged was proportionate to the legitimate aims sought to be protected. The inspector was an expert and experienced, and acted in a quasi-judicial capacity, which each warranted a wide margin of discretion. He was acting in an area of social policy, which in itself attracted a wide margin of discretion. As a result, considerable deference ought to be attached to his conclusion. Proportionality was a question of substance and not form. If the inspector had clearly engaged with the article 8 rights in play, and considered them with care, given his wide margin of discretion, it was unlikely that the court would interfere with his conclusion on grounds of proportionality. If he had not, the court would not quash his decision if his error was immaterial. If his error was material, it was open to the court to find that the interference with the relevant human rights was in any event proportionate; or quash the decision.
(3) In the circumstances of the present case, whilst the inspector had not used the phrase “best interests”, it was clear that she had had the best interests of the children at the forefront of her mind. She had performed the balancing exercise required by section 70 of the 1990 Act. The reference to the children’s benefit from a settled home with access to educational and medical services as being attributed “moderate weight”, was clearly the inspector’s assessment of the relative weight she considered appropriate for those factors after examining all of the material considerations. It was plain from the context that she was not giving the children’s best interests inherently less weight than the harm to which the development had given rise. The inspector was fully entitled, after that faultless analysis, to conclude that the dismissal of the appeal against the refusal of planning permission, subject to an extension for compliance with the enforcement notice, would not have a disproportionate impact upon the claimant and her family.
Per curiam: Whether a decision-maker had properly assessed whether the adverse impact of a decision on the interests of the child was proportionate was a question of substance, not form. However, it would be helpful, not only to those involved in the application but also to the court in any later challenge, if an inspector on an appeal set out his reasoning with regard to any child’s interests in play, even briefly. It would be particularly helpful if the reasoning showed that the inspector had brought his mind to bear upon the adverse impact of the decision he had reached on the best interests of the child, and had concluded that that impact was in all the circumstances proportionate.
Marc Willers and Alex Grigg (instructed by Lester Morrill Solicitors, of Leeds) appeared for the claimant; Hereward Philpott and Sarah Hannett (instructed by the Treasury Solicitor) appeared for the first defendant; The second defendant did not appear and was not represented.
Eileen O’Grady, barrister
