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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Collins v Secretary of State for Communities and Local Government & Anor [2013] EWCA Civ 1193 (09 October 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/1193.html Cite as: [2013] EWCA Civ 1193, [2013] PTSR 1594, [2013] WLR(D) 376 |
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OF
APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Pelling QC
![]() ![]() Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE FLOYD
and
SIR DAVID KEENE
____________________
Elizabeth ![]() ![]() |
Appellant |
|
- and - |
||
(1) ![]() ![]() ![]() ![]() (2) Fylde Borough Council |
Respondent |
____________________
of
the Handed Down Judgment
of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
for
the Appellant
Rupert Warren QC (instructed by The Treasury Solicitor) for
the Respondent
Fylde Borough Council did not appear on the appeal
Hearing date : 18 July 2013
____________________
OF
JUDGMENT
Crown Copyright ©
Lord Justice Richards :
General approach
"(i) Given the scopeof
planning decisions and the nature
of
the right to respect
for
family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.
(ii) Where the article 8 rights are thoseof
children, they must be seen in the context
of
article 3
of
the UNCRC, which requires a child's best interests to be a primary consideration.
(iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with thoseof
his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and can properly represent and evidence the potential adverse impact
of
any decision upon that child's best interests.
(iv) Once identified, although a primary consideration, the best interestsof
the child are not determinative
of
the planning issue. Nor does respect
for
the best interests
of
a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests
of
the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.
(v
) However, no other consideration must be regarded as more important or given greater weight than the best interests
of
any child, merely by virtue
of
its inherent nature apart from the context
of
the individual case. Further, the best interests
of
any child must be kept at the forefront
of
the decision-maker's mind as he examines all material considerations and performs the exercise
of
planning judgment on the basis
of
them; and, when considering any decision he might make (and,
of
course, the eventual decision he does make), he needs to assess whether the adverse impact
of
such a decision on the interests
of
a child is proportionate.
(vi) Whether the decision-maker has properly performed this exercise is a questionof
substance, not form. However, if an inspector on an appeal sets out this reasoning with regard to any child's interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision-maker reached the decision that the adverse impact to the interests
of
the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact
of
the decision he has reached on the best interests
of
the child, and has concluded that impact is in all the circumstances proportionate …."
Whether due consideration was given to the best interest of
the children in this case
The inspector's report
"The accommodation needsof
the occupants
of
the site and the availability
of
alternative sites
118. The site is occupied by 78 people, including 39 children. With the exceptionof
two Scottish Travellers, they are all Irish Travellers. Irish Travellers are a distinct ethnic and cultural group with a long history
of
travelling around Britain and Ireland in large groups. Mrs Heine's evidence summarises (at paragraph 6.10) the results
of
a study
of
Irish Travellers. It refers to problems
of
disadvantage and marginalisation, high levels
of
discrimination, harassment, a lack
of
sites and insecure, unhealthy living conditions. Irish Travellers are less likely to have a settled base than many Romany Gypsies.
119. Irish Travellers in general and this group in particular attach great importance to travelling and living together as an extended family. This group has been unable to do so until now because no site has been available. They comprise four closely related family groups and have led a highly nomadic life, never living in houses. They have travelled extensively, mostly in the northof
England and particularly in the area between Stockport in the south and Blackpool and Fleetwood in the north. They have lived on the roadside or on other unauthorised sites, including land in Blackpool, Fylde and Wyre districts. They have frequently been moved on by the police, often at short notice. Their need is
for
a site
of
sufficient size to accommodate the group in order to allow easy access to basic sanitary facilities and to provide a settled base from which to travel
for
work purposes and allow better access to health, education and other services.
…
121. There are no alternative sites realistically available within Fylde, eitherfor
the group as a whole or
for
its component families. Nor has the Council suggested that sites are available in the wider surrounding area. … Their need
for
accommodation and the lack
of
suitable realistically available alternative sites weigh in favour
of
the development.
The personal circumstancesof
the occupants
of
the site
122. A roadside existence does not preclude all access to education. Nevertheless, it is very likely that if the travellers were obliged to leave the appeal site with no alternative site to go to there would be serious disruption to the educationof
the 22 children currently attending school. It is also likely that the education
of
those on school waiting lists would be disrupted. Mrs Hartley has no medical qualifications but her work requires close liaison with health professionals. Her evidence on medical matters is detailed and credible. A roadside existence would make access to health care considerably more difficult, with the potential
for
a harmful effect on the health
of
some members
of
the group, including those with significant existing medical conditions."
"… They have a strong personal needfor
a settled base from which to access work, education, medical and other services and this site is in a reasonable sustainable location. Eviction from this site would probably lead to a roadside existence and that would be likely to adversely affect those on the site with significant medical conditions and the children's access to education. Reversion to a roadside existence could also have adverse environmental and other impacts elsewhere. These are also considerations worthy
of
substantial weight in the appellants' favour."
Nevertheless, having particular regard to the effect on the landscape, visual amenity and highway safety, he considered that the overall balance did not justify the granting of
permanent planning permission
for
the development.
"135. This interference with the rightsof
the appellants and their families must be balanced against the wider public interest in pursuing the legitimate aims stated in Article 8. With regard to both permanent and temporary permissions, the harm which would continue to be caused by the development, particularly in terms
of
the protection
of
the environment and safety, is considerable. Taking into account all the material considerations, including the appellants' personal circumstances, I am satisfied that this legitimate aim can only be safeguarded by the dismissal
of
these appeals combined with the extension
of
the period
for
compliance with the requirements
of
the enforcement notice to which I refer above …. The protection
of
the public interest cannot be achieved by means which are less interfering
of
the appellants' rights. Such a decision would therefore be proportionate and necessary in the circumstances and hence would not result in a violation
of
the appellants' rights under Article 8
of
the European Convention on Human Rights."
The decision letter
"The accommodation needsof
the occupants
of
the site and the availability
of
alternative sites
19. TheSecretary of State
agrees with the Inspector's reasoning and conclusions at IR118-121, with regard to the accommodation needs
of
the occupants
of
the site and the availability
of
alternative sites. He agrees that there are no alternative sites realistically available within Fylde, whether
for
the group as a whole or
for
its component families, and he notes that the Council did not suggest that sites are available in the wider surrounding area (IR121). He further agrees that the need
of
the appellants
for
accommodation and the lack
of
suitable and realistically available alternative sites weighs in favour
of
the development (IR121).
The personal circumstancesof
the occupants
of
the site
20. TheSecretary of State
has given careful consideration to the evidence submitted on personal circumstances, including your proof
of
evidence (dated January 2011) and the written health assessment from Nicola Hartley
of
'Making Space' (dated December 2010). He agrees with the Inspector that, if the travellers were obliged to leave the site with no alternative site to go to, there would be serious disruption to the education
of
the children currently attending school (IR122). The
Secretary of State
is satisfied that the evidence in this case justifies attributing significant weight to continuity
of
education. The
Secretary of State
shares the Inspector's view that a roadside existence would make access to health care considerable more difficult, with the potential
for
a harmful effect on the health
of
some members
of
the group, including those with significant existing medical conditions (IR122). He attributes moderate weight to the health needs
of
the site occupants."
"24. With regard to the matters put forward in supportof
the appeals, the
Secretary of State
has concluded that unmet need is a significant material consideration weighing in the appellants' favour …. He has also concluded that the accommodation needs
of
the site occupants and the availability
of
alternative sites weighs in favour
of
the development (paragraph 19 above). The
Secretary of State
has attributed significant weight to continuity
of
education and moderate weight to the occupants' health needs (paragraph 20 above). These matters, and the avoidance
of
potential adverse impacts which may arise if the appellants were to take up a roadside existence, are all considerations which the
Secretary of State
weighs in support
of
the appeal scheme."
"28. TheSecretary of State
has given careful consideration to the Inspector's reasoning and conclusions at IR134-139 with regard to the site occupants' rights under Articles 6, 8 and 14
of
the European Convention on Human Rights.
For
the reason given by the Inspector, he agrees that dismissal
of
the appeals would be an interference with the occupants' homes and with their private and family lives (IR134). However, such interference must be balanced against the wider public interest and, like the Inspector, he is satisfied that the legitimate aim
of
protecting the environment and safety can only be safeguarded by the dismissal
of
these appeals combined with the extension
of
the period
for
compliance with the requirements
of
the enforcement notice (IR135). He agrees with the Inspector that such a decision would be proportionate and necessary in the circumstances and hence would not result in a violation
of
the appellants' rights under Article 8
of
the European Convention on Human Rights (IR135)."
"31. TheSecretary of State
considers, overall, that the appeal development is not in accordance with the development plan as it would cause harm to the landscape character
of
the area, visual amenity and highway safety. He has gone on to consider whether there are any material considerations which would outweigh this conflict. He has taken into account the factors that weigh in favour
of
the appeals which include the unmet need
for
sites in the wider area, the lack
of
available and suitable alternative sites, the strong personal need
of
the appellants
for
a settled base and the likely adverse effects on the appellants
of
a reversion to a roadside existence. However, he considers that these factors do not outweigh the conflict with the development plan."
The appellant's submissions
Discussion
"26. In my judgment, once it is accepted that the question is oneof
substance not form, and once it is accepted that the decision letter and Inspector's report have to be read together, the claimant's submission that the decision maker failed to treat the best interests
of
the children as a primary consideration cannot be maintained. The personal circumstances and accommodation needs
of
the occupants
of
the site necessarily included the children who lived at the site, and that issue was expressly identified by the Inspector as being two
of
the main considerations relevant to the appeal – see the report at paragraph 83. The Inspector identified expressly that there were 39 children who lived at the site – see paragraph 118
of
the report. He referred in terms to the problems
of
disadvantage and marginalisation, and insecure and unhealthy living conditions – see paragraph 118
of
the report. He acknowledged that the claimants had frequently been moved on by the police, often at short notice – see again paragraph 118
of
the report [in fact paragraph 119] – and that the claimants, and, therefore, by necessary implication, the children, had a need
for
a site with easy access to sanitary facilities and which provided a settled base allowing better access to health and education. This latter point was necessarily a reference specifically to the needs
of
the children who lived at the site.
27. At paragraph 122 the Inspector acknowledged the serious adverse effect on the education needsof
the children on site and the deleterious effect on the health
of
the claimants, and therefore their children,
of
not having homes on a settled site …. The
Secretary of State
's approach was to attribute 'significant weight' to the education issue and 'moderate weight' to the health issue.
28. … I conclude that it is difficult to read either the reportof
the Inspector or the decision letter as treating the education and health issues as anything other than primary considerations. They were considered as such. In paragraph 24
of
the decision letter, the first defendant said in terms that significant weight had been attached to the continuity
of
education, and moderate weight to the occupants' health needs, as supporting the scheme. The judgment
of
the first defendant was, however, that substantial weight was to be given to the harm to the landscape resulting from the development and the harm to visual amenity. He also attached considerable weight to the harm to road safety. This led the first defendant to conclude that the overall balance
of
these issues did not justify the grant
of
permission.
29. In my judgment, there was nothing wrong in substance with this approach. Neither the first defendant nor the Inspector treated those considerations that pointed towards a refusal as '… inherently more significant …' than the interestsof
the children on site. Thus there was not a departure by the first defendant or the Inspector from the approach set out by Baroness Hale in ZH as a matter
of
substance. Rather, the approach
of
the decision-maker was that contemplated by Baroness Hale, namely that following a fact-sensitive analysis
of
all the material considerations relevant to the particular appeals under considerations, he had concluded that the negative factors identified outweighed cumulatively the best interests
of
the children, being primarily their education and health needs."
Conclusion
Lord Justice Floyd :
Sir David Keene :