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||Neutral Citation Number:  EWCA Civ 1460
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Forbes)
||Royal Courts of Justice
Tuesday, 8th October 2002
B e f o r e :
LORD JUSTICE PILL and
LORD JUSTICE WALLER
||(1) THE SECRETARY OF STATE FOR TRANSPORT,
||LOCAL GOVERNMENT AND THE REGIONS
||(2) THE LONDON BOROUGH OF BARNET
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The Applicant Claimant Mr Sabi appeared in person.
The Respondent Defendants did not appear and were not represented.
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- LORD JUSTICE PILL: This is an application for permission to appeal against a decision of Mr Justice Forbes given on 18th June 2002. Mr Justice Forbes refused an application by Mr Hamid Sabi, the applicant, to quash a decision of the Secretary of State given by his inspector on 11th October 2001.
- The Secretary of State had dismissed an appeal by the applicant from the refusal of the local authority, the London Borough of Barnet, to grant planning permission for the erection of steel gates at the applicant's property at 14 Winnington Road, London N2, a substantial dwelling house which is within the Hampstead Garden Suburb Conservation Area and Area of Special Character. A planning application had been made on 10th October 2000.
- This is a renewed application. I refused permission on the papers on 6th August 2002.
- The planning issues were stated by the inspector at paragraph 6 of his decision:
"I consider that the main issues are:
.The effect of the development on the character and appearance of Hampstead Garden Suburb Conservation Area; and
.Whether the needs of the appellant and his family for protection against crime provide justification for the retention of the steel gates."
- The inspector accepted that crime prevention is capable of being a material planning consideration and said:
"I am sympathetic to the distressing experiences that members of the appellant's family have had of attacks and robbery in the driveway of the house in 1996 and 1997 and note the more recent burglaries that have taken place."
- The inspector also stated that he could understand that:
"... the gates have given a greater sense of security to the occupiers of the property."
- The gates have been in position now for a considerable time.
- One of the arguments put forward to the inspector by the applicant in his written submissions was in relation to Article 8 of the European Convention on Human Rights. The inspector recognised that dismissal of the appeal:
"... would result in some interference with the appellant's home and private and family life."
- Without making any finding of fact on that question, I would accept it for present purposes. The inspector went on to say that:
"... interference must be balanced against the public interest in pursuing the legitimate aims stated in Article 8 ..."
- The applicant has referred in his written submissions to South Buckinghamshire District Council v Porter  1 WLR 1359, where simon Brown LJ stated, at para 2:
"... nor is it in dispute that the interference [with family rights] is `in accordance with the law' and is pursued `for the protection of the rights ... of others' within the meaning of article 8(2), namely through the preservation of the environment."
- The inspector considered the impact of the gates upon the local environment. He referred to the Unitary Development Plan of the London Borough of Barnet which was adopted in 1991. That authority is of course a publicly elected local authority with responsibilities as local planning authority. He referred to a number of policies in the plan and the statutory duty in section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 enacted by Parliament, which is also, of course, a publicly elected body.
- The inspector formed the view that the steel gates, which he described, did have an adverse impact upon the conservation area. He stated, at paragraph 9, that they created:
"... in my opinion, a clear division of public and private space which is out of keeping with the general open character of the road. Due to their height I consider that the piers are also untypical of the surrounding area. ... I therefore judge that the sense of enclosure created by the gates and piers significantly interrupts the openness that exists in this part of Winnington Road and so spoils the character and appearance of the area."
- The inspector also expressed the opinion that the gates:
"... occupy a prominent position and look incongruous, particularly in views from the eastern side of Winnington Road."
- His general conclusion was that the proposal:
"... would neither preserve nor enhance but would cause harm to the character and appearance of Hampstead Garden Suburb Conversation Area."
- He added that it would not, in his opinion, accord with policies of the Unitary Development Plan which he listed.
- Having considered, under the heading "Crime prevention", the legitimate concerns of the applicant, the inspector reached this general conclusion:
"For these reasons, I conclude that the purpose of the gates in preventing crime does not justify permitting their retention in view of the strong objection that I have identified and the legislative requirement in respect of conservation areas."
- The judge came to the conclusion that the inspector was entitled to reach the conclusion which he did.
- In his written submissions the applicant has argued that the judge has shown a "layer of judicial deference". He has argued that the Human Rights Act does not permit such a "deferential approach" to the decision of the inspector.
- Mr Sabi has appeared in person and has addressed the court clearly and persuasively, as one would expect. He has referred to the duties of the State to protect its citizens and submits that the police have been unable to provide him and his family with the protection to which he is entitled. He has developed his submission that the judge has adopted too deferential an approach. In the light of the Human Rights Act he submits that the judge, in making a balancing exercise, should perform the same function as the inspector. The judge should himself consider any arguments and reach his own decision on what he perceives the merits of them to be.
- The applicant also refers to what he describes as "the cluster of rights" provided in the Convention. He has referred specifically to Article 14, which provides protection against discrimination. He submits that, by allowing gates in another part of the road, there is a breach of Article 14. I cannot accept that submission in the light of the inspector's finding at paragraph 15 of his decision, which in my judgment he was entitled to make, that there was a:
"... clear distinction between this part of the road [where gates have been allowed] and the more open character of the northern section."
- In his written submissions the applicant has referred to the decision of the House of Lords in R (Daly) v Secretary of State for the Home Department  2 AC 532, and in particular para 27, where Lord Steyn stated, having heard submissions as to the importance of proportionality in the regime of the Convention and the Human Rights Act:
- "Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach."
- Comparison was made between that approach and that traditionally of Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223.
- Mr Sabi has also referred to the South Buckinghamshire case which I have already mentioned and to paragraphs 2, 27 and 41 of the judgment of Simon Brown LJ.
- The applicant has also referred to the changes in society which he submits have occurred and to the need in present conditions to give greater weight to the security of citizens than may have been necessary formerly.
- In refusing permission on paper I stated:
"The duties of the inspector with respect to the environment do not depend on complaint being made by neighbours (para 15 of the skeleton argument). I agree with the judge's reasoning at para 29 of his judgment. As to interaction (para 23 of the skeleton), the inspector considered the balance to be struck (para 14 of his decision). In my view there is no error of law."
- I am still of the same opinion. In my judgment it is not arguable that in this court the decision of Mr Justice Forbes would be reversed.
- The planning decision must be considered by the courts, in the performance of their duties, in the light of the Human Rights Act. That does involve a consideration of the Convention and the Articles to which the applicant has referred and, in particular, Article 8, upon which he principally relies. Argument on the point was addressed to the inspector. I agree with the judge that, in the circumstances of this case and in the proper discharge of his duties, the inspector was entitled to make the balancing exercise which he did. He was entitled to hold that greater weight should be given to the policies of Parliament and the local authority and the importance of the openness of the Hampstead Garden Suburb Conservation Area than should be given to other considerations.
- Scrutinising the decision of the inspector, in my judgment he asked himself the right questions. He had regard to the crime prevention aspect in the context of Article 8. In my judgment he was entitled, without there being any breach of the Human Rights Act, to reach the conclusion he did for the reasons which he gave in his carefully drafted decision letter.
- For those reasons I would refuse this application for permission to appeal.
- LORD JUSTICE WALLER: I agree.
Order: application for permission to appeal dismissed.
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