B e f o r e :
LORD JUSTICE PILL
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
|| DAVID LOUGH & ANRS
||- v -
||FIRST SECRETARY OF STATE
BANKSIDE DEVELOPMENTS LIMITED
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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MR R CLAYTON QC & MR C ZWART (instructed by Steele & Co) for the Appellant
MISS N LIEVEN (instructed by the Treasury Solicitor) for the Respondent
MR M LOWE QC & MR WOLTON QC for the Interested Party
HTML VERSION OF JUDGMENT
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Lord Justice Pill:
- This is an appeal against a decision of Collins J whereby, on 21 January 2004 he refused an application by Mr David Lough and others made on behalf of themselves and as Officers of BROAD ("The Bankside Residents for Appropriate Development"), an unincorporated association, ("the Appellants") to quash a decision of the First Secretary of State ("the Respondent") whereby on 9 June 2003 he granted Bankside Developments Ltd ("the interested party") planning permission to redevelop a site in the Bankside area of Southwark between Blackfriars Bridge and Southwark Bridge. Acting by an Inspector appointed by him, the Respondent allowed an appeal against a refusal of planning permission on 18 October 2002 by the Council for the London Borough of Southwark ("the Council"). The permission was for demolition of existing buildings and redevelopment to provide a 20-storey building with 28 dwellings and shops and restaurants on the ground floor, and associated facilities.
- The Inspector conducted a local public enquiry at which over 30 witnesses were called, including 12 expert witnesses. The Appellants were objectors to the proposal. They were concerned, amongst other things, to protect the amenities of residents at Bankside Lofts and Falcon Point, which are near the site, and the amenities of the Tate Gallery of Modern Art ("the Tate Modern") into which the former Bankside Power Station, very close to the site, had been converted.
- One of the Council's reasons for refusing permission had been that the proposal breached policy E3.1 of its Unitary Development Plan. That policy provides:
"Protection of Amenity
Planning permission for any development or change of use will not normally be granted where it would involve nuisance or loss of amenity to adjacent users, residents and occupiers of the surrounding area.
Reason: to protect the amenity of the area and of the people living, or working in, or visiting the area. "
- The Inspector, at paragraph 15 of his Decision, identified what he considered to be the main issues:
"Whether or not the proposed development would: firstly, affect the residential amenities of any neighbouring dwellings; secondly, affect the amenities of the Tate Modern; and thirdly, if such amenities are adversely affected, whether or not there is justification to allow the appeal and grant planning permission. In the light of evidence and submissions made by BROAD I have identified a main issue of equal importance, namely whether or not the design of the proposed development is of sufficiently high quality in relation to the location of the site in the Bankside area and adjacent to Tate Modern."
The Inspector resolved the last of those main issues in favour of the interested party and further consideration of it is unnecessary for present purposes.
- The Inspector referred to Section 54A of the Town and Country Planning Act 1990 ("the 1990 Act") which provides:
"where, in making any determination under the planning acts, regard is to be had to the development plan, a determination shall be made in accordance with the plan unless material considerations indicate otherwise."
In relation to the first of the main issues he had identified, the Inspector concluded, first (paragraph 43), that "dismissal of the appeal for reasons relating to privacy and overlooking is not justified". However, he also concluded (paragraph 48) that "insofar as the matters of daylight, sunlight and overshadowing are concerned, the proposed development is not consistent with the relevant part of UDP Policy E3.1" He was not convinced that the proposed development caused unacceptable harm to Tate Modern and its facilities. As to the third issue, and having referred to what he considered to be a breach of Policy E3.1, the Inspector stated, at paragraph 54:
"However, by virtue of the technical evidence produced by the [interested party] at the inquiry I am not convinced that this issue is of such force as to warrant dismissal of the appeal when weighted against the advantages that would result from the proposed development".
He stated, at paragraph 55, that the loss of daylight "would not be so great as to render the affected rooms [in the neighbouring dwellings] incapable of continued beneficial use. ….The loss of daylight and sunlight to neighbouring residential properties and their overshadowing are regretted, but from the evidence before me I am not persuaded that the effects would be so great as to prove unacceptable".
- At paragraph 56, the Inspector stated:
"Set against the effects on these neighbouring dwelling are the advantages that would stem from the proposed development. In addition to compliance with the general thrust of national, regional and local planning policies the Appellants list them as:
a) the removal of an unsightly building:
b) the construction of a building of substantial design quality;
c) the provision of sustainable residential development;
d) the efficient use of previously developed land;
e) the provision of affordable housing;
f) the provision of funds for environmental improvement by means of a Section 106 planning obligation;
g) the erection, potentially, of a beautiful building that would make a positive contribution in urban design terms;
h) a contribution to the regeneration of this area of London.
I accept that these are indeed benefits that would result from erection of the proposed building. Having weighed the degree to which the proposed development fails to comply with UDP Policy E3.1 against all the other issues and foregoing matters, especially the advantages that would stem from the proposed development, I find that there is justification to warrant an exception to UDP Policy E3.1. In the circumstances I am disposed to allow the appeal and to grant planning permission."
- Before setting out his formal decision, and the conditions to which the permission was to be subject, the Inspector then inserted the heading "Consideration of issues raised by reference to the Human Rights Act 1998". Having referred to the Appellants' wish to protect their amenities, to the imposition of conditions, and to other matters not now said to be relevant, the Inspector concluded, at paragraph 60:
"Bearing all these matters in mind I conclude that no interference with the European Convention on Human Rights ["the Conventon"] has been established. Accordingly, insofar as Articles 1, 6 and 8 of the Convention are concerned, I am satisfied that the rights of the residents of Falcon Point, and also the residents of Bankside Lofts, have not been violated".
(The reference to Article 1 was clearly intended to be a reference to Article 1 of the First Protocol).
The Inspector added, at paragraph 64:
"Matters of property valuation and the financial status of the [developers] were raised at the enquiry, but I place no importance on them as they do not amount to material planning considerations".
That proposition is not challenged but it is submitted that the diminution in value is relevant to the extent mentioned in paragraph 11 of this judgment.
Submissions and judgment of Collins J
- Permission to appeal was sought from, and granted by, Collins J only on the ground that there had been a breach of the Human Rights Act 1998 ("the 1998 Act"). It is submitted that Article 8, and possibly Article 1 of the First Protocol, which form part of the law of England and Wales by virtue of Sections 1 and 6 of the 1998 Act, were infringed by the Respondent's decision. Article 8 was engaged by a departure from the development plan involving loss of privacy, mutual overlooking, loss of a view and loss of light at Bankside Lofts and Falcon Point, the interference with television reception at Falcon Point for a year and the diminution in value in the properties at Bankside Lofts.
- It is further submitted that the Respondent acted unlawfully in failing to address or apply, when making his decision, the proportionality principle. It is submitted that the loss of amenity represents an infringement of the neighbouring residents' right to respect for their private and family life and their homes. It is submitted, in the alternative, that the diminution in value of the homes infringes the right, under Article 1 of the First Protocol, to the peaceful enjoyment of them. The Inspector erred, it is claimed, in failing to consider three of the complaints made by the Appellants: loss of a view, interference with television reception at Falcon Point during the construction of the proposed building and the diminution in value of 15% to 20% in the properties at Bankside Lofts. Evidence of diminution to that extent appeared in a surveyor's report submitted in writing by the Appellants to the Inspector, though not agreed and indeed challenged by way of comment during submissions.
- Having considered authorities, the judge concluded:
"28. A balance has to be struck in planning decisions such as the present between the rights of the developer and the rights of those affected by the proposed development. If an adjoining occupier seeks to build on or change the use of his land, an individual is likely to be affected and his enjoyment of his property may be interfered with. In addition, the public generally may be affected if, for example, conservation areas or the green belt is affected. These various matters have all to be weighed and that is what a local planning authority or an inspector will do. In the vast majority of cases, that exercise will deal with all matters which are relevant in deciding proportionality within the meaning of Article 8 or Article 1 of the First Protocol………. While no doubt it would be sensible to refer explicitly to proportionality so as to avoid challenges such as this, it is not in my view necessary provided it is clear that all relevant factors have indeed been considered and the result would not be any different.
29. It is difficult not to sympathise with the claimants. Those who live in Falcon Point have had to put up with the disruption of the building of Bankside Lofts and the construction work at Tate Modern. Their amenities will be adversely affected. But in an urban setting it must be anticipated that development may take place and that high rise buildings are inevitable having regard to building costs and the value of city centre land. Further, it is in the public interest that residential developments take place in urban areas if possible. It is clear that the inspector did consider the advantages of the proposed development against the disadvantages to the claimants. It is inconceivable that he would have reached any different conclusion if he had specifically dealt with proportionality. The obstruction of views for some and any diminution in value would not have affected the position having regard to the inspector's findings in relation to the desirability of this development. In reality, the inclusion of Article 1 of the First Protocol adds nothing since any diminution in value is an effect of the loss of amenity: see Malster at paragraph 89 per Sullivan J. [ R(Malster)) v Ipswich Borough Council  PLCR 251].
30. While it may be correct to say that it is unnecessary to look for a threshold, it makes no difference in practice. If the interference is slight, it will be very easy to show that it is proportionate. The inspector has not erred in his approach to the balancing exercise required by the planning legislation. There is no possibility that he would or should have reached a different conclusion had he specifically referred to proportionality. "
- It is submitted that the loss of privacy, overlooking, loss of light, loss of a view and interference with television reception all constitute breaches of Article 8. As to diminution in value, in his main submissions, Mr Clayton QC, for the Appellants stated that he was content to treat it as a measure of the loss of amenity relevant for the purposes of Article 8. However, in his reply, he argued that a broader view should be taken of the diminution as an interference with the right of respect for the Appellants' homes. In the alternative, it amounted to a partial taking of property under Article 1 of the First Protocol. As to television, Condition 20, proposed to be imposed on the planning permission, acknowledges the possibility of interference, during construction, with television reception at Falcon Point. Interference with television reception may be a serious matter, especially for the aged, the lonely and the bedridden (Hunter v Canary Wharf Ltd 1997 AC 655 at 684 per Lord Goff of Chieveley). It is submitted that in deciding whether a Convention right is engaged, the threshold is a low one. Human Rights instruments should be given a broad and generous interpretation.
- It is further submitted that the Inspector has erred in law in not expressly addressing the question of proportionality. It is for the planning authority to show that the loss of amenity is justified by the importance of the objective sought by the interference, that the means used is no more than is necessary to achieve that objective and that the interference does not have an excessive or disproportionate effect on the affected individuals. The Appellants have been deprived of an adjudication on whether or not the development fell on the wrong side of the line of proportionality. The balancing exercise was in any event wrongly conducted in that several aspects of loss of amenity and value were not considered.
- Further, the balancing test conducted by the Inspector, it is submitted, is not equivalent to applying the principle of proportionality. That requires a more structured and a narrower approach. A balancing exercise conducted for the purposes of section 54A of the 1990 Act is insufficient in the context of Article 8 of the Convention which is now part of the law. The judge erred, it is submitted, in holding that all relevant factors were considered and also in holding that it is inconceivable that the Inspector's conclusion would have been different if he had specifically dealt with proportionality.
- As to diminution in value, Miss Lieven, for the Secretary of State, adopts the approach of Collins J in paragraph 29 of his judgment. She also submits that the balancing of property rights involved in Article 1 of the First Protocol would necessarily be met if the Article 8 balance is met.
Considerations other than Article 8
- Even though permission to appeal is limited to a consideration of the decision in relation to the provisions of 1998 Act, points have been taken which could have been taken had the Statute not been enacted. It is accepted that amenity considerations would have been relevant in any event, although it is claimed that diminution in value is a consideration rendered material by the statute. It is also submitted that, quite apart from the 1998 Act, the balancing of interests was unsatisfactory in that, at paragraph 43, the Inspector had excluded some of the material considerations from the balance. I reject that submission. It is clear that in reaching his conclusion at paragraph 56, the inspector had regard to all the matters to which he had referred in the earlier paragraphs, including paragraph 43.
- Subject to a consideration of the impact of the 1998 Act, I can see no possible grounds for challenging the decision of the First Respondent. As fact finding tribunal and planning authority, the Inspector found facts, set out the material considerations and made the judgment expressed at paragraph 56 of his report. The material considerations in his view indicated that it was appropriate to permit a departure on the appeal site from the development plan. The court is invited to consider the impact of the 1998 Act, and in particular Article 8 of the Convention which the Act incorporates into English law, upon the way in which planning decisions, and in particular this planning decision, are taken.
Submissions on the test to be applied
- I have summarised the general submissions made on behalf of the Appellants. On the particular facts, Mr Clayton submits that the effects of the proposed development on the amenities of the Appellants were of sufficient gravity to engage Article 8. It created a qualified and not an absolute right but unless the interference is minimal, the Article is engaged. That being so, the decision maker must consider and expressly state whether the interference with Article 8 rights is necessary and proportionate. The judge was wrong to conclude that, had he applied the correct test, the Inspector would have reached the same conclusion. A broad brush approach to the issues must be supplemented by the detailed analysis described in the judgment of Dyson LJ in R(Samaroo) v Secretary of State for the Home Department UKHRR 1622.
- The applicant Samaroo was convicted of serious drug offences and made subject to a deportation order. He challenged the order on the ground that it would involve an interference with the right to family life under Article 8(1) of the Convention and that such interference was not justified under Article 8(2). Dyson LJ referred to the doctrine of proportionality, as explained by Lord Steyn in R v Secretary of State for the Home Department ex parte Daly  2 AC 532, (Daly involved an examination of the privileged correspondence of a prisoner.) Both Samaroo and Daly involved a direct issue between state powers and individual rights. In Samaroo, Dyson LJ stated, at paragraph 19, that "in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights ? … The essential purpose of this stage of the enquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person's right under the Convention".
- At paragraph 20, Dyson LJ stated:
"At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention Rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons ?"
Dyson LJ concluded, at paragraph 25:
"I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention Right, the task for the decision maker, when deciding whether to interfere with the Right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention Rights on the other".
- That test has been applied, Mr Clayton submits, in the field of planning law in subsequent cases. In Egan v Secretary of State for Transport Local Government and the Regions  EWHC 389 Admin, the applicant challenged the non-determination of an application for planning permission for a 12 pitch caravan site in a Green Belt. A proportionality test was applied by the Secretary of State. Sullivan J, having cited Samaroo, stated, at paragraph 50:
"Article 8 rights are not absolute. They are qualified in the sense that they do require a balance to be struck, and it is not submitted that Article 8 rights are of a special importance by comparison with other rights guaranteed by the Convention".
At paragraph 51, the judge referred to factors which "point towards a considerable measure of deference being accorded to the judgment of the decision-taker as to proportionality, it having been established that the necessity threshold has been crossed".
- Similarly in R (Gosbee) v The First Secretary of State  EWHC 770 Admin, a bungalow was not demolished as required by a condition when planning permission for a new dwelling was given. An enforcement notice was issued requiring the demolition of the bungalow. Elias J stated, at paragraph 24, that "in determining whether the interference is proportionate both parties accept, and I agree in this case, that the Court should adopt the two-fold test adumbrated by Dyson LJ in [Samaroo]". Considering the facts, the judge accepted that the Inspector had not in terms disentangled the two questions referred to in Samaroo but stated that the key issue was whether the proper balancing of factors had taken place. Elias J concluded, at paragraph 32:
"I do not think there can be any real doubt that the inspector considered both that the condition was the least intrusive interference to achieve the policy of one for one replacement, as he put it, and that the environmental interest which he assessed to be very important outweighed the Article 8 interest in the circumstances of this case. This was essentially a balancing exercise for him in the light of the information he had."
- Mr Clayton submits that the two limbs of the Samaroo test should have been applied by the Inspector in the present case. That would have involved enquiring whether the aim to be achieved could be achieved by means which interfered less with the Appellants' rights. It was necessary to consider whether the commercial objectives of the interested party could be achieved by a less intrusive design and whether the residential accommodation could be situated elsewhere in the locality so as to avoid the adverse impact on third parties. Only when that enquiry had been conducted, did the second stage, the fair balance test, arise. At that stage, it is accepted that the decision-maker may be entitled to a significant margin of discretion, as accepted in Samaroo at paragraph 39. However, in this case, such deference cannot rectify a decision which is legally flawed because the correct test has not been applied. Moreover, at the second stage the Court must carefully scrutinise the weight given by the Inspector to each factor and, in accordance with Daly, interfere if it is concluded that the weight accorded to a factor is unfair and unreasonable.
The scope of Article 8 in context
- It is necessary to consider the scope of Article 8 and its relevance and application in a situation where there are competing private interests between landowners and also a public interest in beneficial land use.
- Article 8 of the Convention provides:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 1 of the First Protocol to the Convention provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties"
- That environmental considerations may involve a breach of Article 8 is clear from the decisions of the European Court of Human Rights in Lopez Ostra v Spain  20 E.H.R.R 277 and Guerra & Others v Italy  26 EHRR 357. In Lopez Ostra, a waste treatment plant was built close to the applicant's home in an urban location and the plant released fumes and smells which caused health problems to local residents. The Court held, at paragraph 51:
"Naturally, severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health."
At paragraph 58, the Court stated:
"Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the town's economic well-being – that of having a waste-treatment plant - and the applicant's effective enjoyment of her right to respect for her home and her private and family life."
- In Guerra, the applicants lived about 1km from a chemical factory which produced fertilizers and other chemicals and was classified as "high risk" in criteria set out by Presidential Decree. The Court stated, at paragraph 58:
"The Court considers that Italy cannot be said to have "interfered" with the applicants' private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life ."
The Court stated, at paragraph 60:
"The Court reiterates that severe environmental pollution may affect individuals' well being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely….The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants' right to respect for their private and family life, in breach of Article 8 of the Convention. "
- In Hatton v United Kingdom  37 EHRR 28, the Court had to consider, in the context of Article 8, the level of noise caused by night flights at Heathrow Airport and its effect on nearby residents. A scheme limiting the number of aircraft movements at night had been introduced by the Government. The case was referred to the Grand Chamber in accordance with Article 43 of the Convention.
- The Court stated, at paragraph 96:
"Article 8 protects the individual's right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Art.8."
Having cited Lopez Ostra and Guerra, the Court stated:
"97. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight.
98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under para.1 of Art.8 or in terms of an interference by a public authority to be justified in accordance with para.2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Art.8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance."
That paragraph restates what the Court had stated in Powell & Rayner v United Kingdom  12 EHRR 355, at paragraph 41.
- The Court repeated the above propositions at paragraph 119 and stated:
"The question is whether, in the implementation of the 1993 policy on night flights at Heathrow Airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole".
- It was stated that it was legitimate for the Government to have taken economic interest into consideration in the shaping of its policy and that environmental protection should be taken into consideration by Governments acting within their margin of appreciation and by the Court in its review of that margin. The Court added, at paragraph 122:
"… It would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue".
Having considered the evidence, the Court concluded, at paragraph 129, and by a majority of 12 to 5:
"In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."
- That approach reflects the statement of the Court in Soering v United Kingdom (1989) 11 EHRR 439, at paragraph 89:
"inherent in the whole of the Convention is a search for fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's human rights"
- In Connors v United Kingdom (Application No. 66746/01) (Judgment 27 May 2004), the Court considered the procedure by which possession orders were obtained against gypsies resident on gypsy sites run by local authorities. The facts and issues were different from those in the present case but in its statement of "general principles", the Court referred to Article 8. The Court stated, at paragraph 82:
"On the other hand, in spheres involving the application of social or economic polices, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that "[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation (Buckley v the United Kingdom, judgment of 26 September 1966, Report of Judgments and Decisions 1966-IV,p.1292, 75 in fine)…..Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (Hatton and others v the United Kingdom,[GC] no. 365022/97, ECHR 2003-…, 103 and 123) "
- Hatton was considered in the House of Lords in Marcic v Thames Water Utilities Ltd  UKHL 66. It was argued that escapes from the public authority's surface water sewers flooding the claimant's garden, and due to overloading of a section of the sewage system, constituted an interference with the claimant's rights under Article 8 and of Article 1 of the First Protocol. The argument was rejected unanimously. Lord Nicholls of Birkenhead referred to the statutory scheme under which Thames Water was operating the offending sewers. Lord Nicholls stated, at paragraph 37:
"Direct and serious interference of this nature with a person's home is prima-facie a violation of a person's right to respect for his private and family life (Article 8) and of his entitlement to peaceful enjoyment of his possessions (Article 1 of the First Protocol). The burden of justifying this interference rests with Thames Water. "
- Having cited Hatton, Lord Nicholls stated, at paragraph 42:
"In the present case the interests Parliament had to balance included, on the one hand, all the other customers of a company whose properties are prone to sewer flooding and, on the other hand, all the other customers of the company whose properties are drained through the company's sewers. The interests of the first group conflict with the interests of the company's customers as a whole in that only a minority of customers suffer sewer flooding but the company's customers as a whole meet the cost of building more sewers. As already noted, the balance struck by the statutory scheme is to impose a general drainage obligation on a sewerage undertaker but to entrust enforcement of this obligation to an independent regulator who has regard to all the different interests involved. Decisions of the director are of course subject to an appropriately penetrating degree of judicial review by the Courts."
Lord Nicholls concluded, at paragraph 43, that "in principle this scheme seems to me to strike a reasonable balance. Parliament acted well within its bounds as policy maker".
- Lord Hoffmann also cited Hatton. He added, at paragraph 71:
"…That decision makes it clear that the Convention does not accord absolute protection to property or even to residential premises. It requires a fair balance to be struck between the interests of persons whose homes and property are affected and the interests of other people, such as customers and the general public. National institutions, and particularly the national legislature, are accorded a broad discretion in choosing the solution appropriate to their own society or creating the machinery for doing so."
- I also refer to the decision of the House of Lords in Harrow London Borough Council v Qazi  UKHL 43 where the effect of Article 8 was considered. The context is different both from that in the present case and that in Marcic, where it was not cited. Mr Qazi resisted an order for possession obtained by the local housing authority, as freehold owners of the house where he lived, on the grounds that there was a breach of Article 8. It was held, by a majority, that having regard to its object, Article 8 could not be relied on to defeat proprietary or contractual rights to possession. Lord Scott of Foscote stated, at paragraph 144 that:
"…If Article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession, the problem identified by Waller LJ [in the Court of Appeal] does not arise. The fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer."
- In reaching that conclusion, Lord Scott considered, at paragraph 119 and following, the history of Article 8. He stated, at paragraph 122:
"As to the right to respect for home life provided by Article 8 of the Convention, its progenitor is article 12 of the Universal Declaration [of Human Rights, 1948] which says that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence…." Neither this language, nor the language of Article 8 can, in my opinion, be read as authorising any deprivation of the property rights of others."
Article 17 of the International Covenant on Civil and Political Rights (1966), ratified by the United Kingdom in 1976, provides that "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…" Thus the wording of the international instruments is consistent though the word "unlawful", which does not require analysis for present purposes, has been added in the Covenant.
- Lord Scott stated, at paragraph 123, that the intention of the Universal Declaration and the European Convention "was to enshrine fundamental rights and freedoms. It was not the intention to engage in social engineering in the housing field". Lord Scott concluded, at paragraph 125:
"… to hold that Article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to Article 8 an effect that it was never intend to have. Article 8 was intended to deal with the arbitrary intrusion by State or public authorities into a citizen's whole life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory State had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary. "
- Lord Hope stated, at paragraph 82:
"I believe that the key to a proper understanding of the issues in this case lies in an appreciation of the fact that Article 8 regards a person's home as an aspect of his right to privacy. The interpretation which I would give to the concept of a person's home in this context is broad enough to give a full measure of protection in a wide range of circumstances that may be envisaged where a person's right to respect for his home is interfered with by the public authorities. The issue which arises in this case is, by way of contrast, a very narrow one which has much more to do with the law relating to property rights than respect for a person's privacy."
- Lord Millett stated, at paragraph 100:
"…Article 8(1) does not give a right to a home, but only to "respect" for the home. This meaning of "respect" for the home cannot be understood in isolation; it can be understood only if Article 8(1) is read together with Article 8(2). This forbids interference with the right conferred by Article 8(1) except in the circumstances specified. By explaining the circumstances in which there may be lawful interference with the right to "respect", Article 8(2) gives meaning to that concept and limits the scope of the Article."
Having referred to Article 8(2), Lord Millett stated, at paragraph 102:
"Consideration of the question whether interference with the right is "necessary for the protection of the rights and freedoms of others" may also call for a balance to be struck, but it need not do so. A person's right to respect for his home includes his right to listen to music, but not to music so loud that it disturbs his neighbour's sleep at 3.00am. Our ordinary law of nuisance requires the court to conduct a balancing exercise between the competing rights of neighbours to enjoy their respective properties. By carrying out that exercise the court will inevitably be concluding, whether consciously or not, whether its interference with one party's right to respect for his home is necessary to protect his neighbour's rights and freedoms. Provided that it carries out the exercise properly and in accordance with the ordinary law, there is no need to give separate consideration to Article 8."
- While the point at issue in Qazi was quite different from that in the present case, the statements of principle do demonstrate the purpose and scope of Article 8. While it requires respect for the home, it creates no absolute right to amenities currently enjoyed. Its role though important must be seen in the context of competing rights, including rights of other landowners and of the community as a whole.
- The ECHR case of Hatton demonstrates the discretion available to national authorities in striking a fair balance between competing interests. In Connors, the expression "wide margin of appreciation" was used in relation to planning policies. Moreover, while stating, at paragraph 98 of Hatton, that the applicable principles were broadly similar, the court recognised the concept of balance under paragraph 1 of Article 8, without reference to paragraph 2, by referring to the requirement to "take reasonable and appropriate measures" to secure the rights under the paragraph. I acknowledge that, in Qazi, Lord Millett at paragraph 100, went straight to Article 8(2) when considering an alleged breach of Article 8(1). His analysis at paragraph 102 and the general approach of the majority in Qazi, however, implement the principle that Article 8(1) does not create an absolute right but a balancing of interests is appropriate in deciding whether there has been a breach. Where a breach of Article 8(1) has been found to exist, as in Lopez Ostra, Guerra and Marcic, where there was direct and serious interference with a person's home due to flooding with sewage, the effect on amenity has been a serious one. In Hatton, it was stated that an issue may arise under Article 8 where an individual is "directly and seriously affected" by noise or other pollution.
- It emerges from the authorities:
(a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered.
(b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home.
(c) Not every loss of amenity involves a breach of Article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial.
(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded.
(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article.
(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered.
(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8.
(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered.
- I add that the present alleged breach of Article 8 is based on a departure from the development plan but, following the reasoning in Hatton, where a government scheme regulating movement of aircraft was under consideration, the Court would adopt the same approach whether it is in a departure from the development plan or an application of the development plan itself which is alleged to be in breach of Article 8. Of course, the contents of the development plan, and the procedure by which it is adopted, should be Convention compliant.
- In the light of the authorities, and the Inspector's findings of fact, Article 8 made no significant impact upon the task to be performed by the Inspector. Article 8 does not achieve the radical change in planning law inherent, although not acknowledged as such by the Appellants, in the submission summarised at paragraph 22 of this judgment that consideration should have been given to the possibility that the benefits achieved by the grant of permission could have been achieved in some other way or on some other site. Article 8, with its reference to the protection of the rights and freedoms of others, and Article 1 of the First Protocol with its reference to a person's entitlement to the peaceful enjoyment of his possessions, acknowledge the right of a landowner to make beneficial use of his land subject, amongst other things, to appropriate planning control. As Sullivan J stated in Malster, at paragraph 89, in relation to Article 1, the prospective developer "is equally entitled to the enjoyment of its possessions."
- I am far from persuaded that, in circumstances such as the present, domestic law in general, and the planning process followed in this case in particular, fail to have regard to the Article 8 rights of people in the vicinity of the appeal site, including the Appellants. Departure from a development plan, even if it is from a provision entitled 'Protection of Amenity' does not of itself involve a breach of Article 8. In his approach to his task, the Inspector struck a balance which was entirely in accord with the requirements of Article 8 and the jurisprudence under it. There has been nothing arbitrary about the procedure followed and the striking of the balance provided that reasonable and appropriate measures were taken to secure the Appellants' rights in accordance with Article 8(1). The approach the Court should adopt was stated by Lord Bingham of Cornhill in Daly at paragraph 23:
"Domestic courts must themselves form a judgment as to whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment)…"
- I find no breach of Article 8(1). Resort to Article 8(2) is not in my judgment necessary to uphold the decision, for the reasons I have given, but, if I am wrong about that, it provides, on the Inspector's findings, justification for the permitted development. I refer to the findings at paragraph 56 of the Inspector's decision together with an acknowledgement of the right of a landowner to make use of his land, as a factor to be considered.
- Recognition must be given to the fact that Article 8 and Article 1 of the First Protocol are part of the law of England and Wales. That being so, Article 8 should in my view normally be considered as an integral part of the decision maker's approach to material considerations and not, as happened in this case, in effect as a footnote. The different approaches will often, as in my judgment in the present case, produce the same answer but if true integration is to be achieved, the provisions of the Convention should inform the decision maker's approach to the entire issue. There will be cases where the jurisprudence under Article 8, and the standards it sets, will be an important factor in considering the legality of a planning decision or process. Since the exercise conducted by the Inspector, and his conclusion, were comfortably within the margin of appreciation provided by Article 8 in circumstances such as the present, however, the decision is not invalidated by the process followed by the Inspector in reaching his conclusion. Moreover, any criticism by the Appellants of the Inspector on this ground would be ill-founded because he dealt with the Appellants' submissions in the order in which they had been made to him.
- The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that "it is important to emphasise that the striking of a fair balance lies at the heart of proportionality".
- I am entirely unpersuaded that the absence of the word "proportionality" in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word proportionality is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case.
- There remains the discrete question on the Inspector's finding "that matters of property valuation" do not amount to material planning considerations, and its bearing on Convention rights. I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent but, in his reply, Mr Clayton, as I understand it, sought to create diminution of value as a separate and distinct breach of Article 8 and Article 1 of First Protocol. Having regard to the background and purpose of each Article, I do not accept that submission. A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the Articles in this context.
- I do not underestimate the importance to landowners of a loss of value caused by neighbouring developments but it does not in my view constitute a separate or independent basis for alleging a breach of the Convention rights involved. The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and to the community.
- I would uphold the conclusion and reasoning of the judge and dismiss the appeal.
Lord Justice Keene:
- I agree that this appeal should be dismissed for the reasons given by Pill LJ. Not every adverse effect on residential amenity will amount to an infringement of the right to respect for a person's home under Article 8(1), as the Strasbourg jurisprudence makes clear. The inspector's findings in the present case suggest that that threshold level of impact would not be reached as a result of the proposed development, but it is clear from those findings that, even if there was a prima facie infringement, it was justified under Article 8(2) once one took into account the need to protect "the rights and freedoms of others". Those others would include the owners of the appeal site as well as the public in general.
- I agree with Pill LJ that the process outlined in Samaroo, while appropriate where there is direct interference with Article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests. In such a situation, a balancing exercise of the kind conducted in the present case by the inspector is sufficient to meet any requirement of proportionality.
Lord Justice Scott Baker:
- I agree with both judgments.