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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Stevens v Secretary of State for Communities and Local Government & Anor  EWHC 792 (Admin) (10 April 2013)
Cite as:  EWHC 792 (Admin),  JPL 1383
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JANE STEVENS
|- and -
|(1) THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) GUILDFORD BOROUGH COUNCIL
Hereward Philpott and Sarah Hannett (instructed by the Treasury Solicitor)
for the First Defendant
The Second Defendant did not appear and was not represented
Hearing dates: 9 October 2012, and 21 January 2013
Further written submissions: 23-28 January 2013
Crown Copyright ©
Mr Justice Hickinbottom:
"Intentions of policy
1.4 The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the most important attribute of Green Belts is their openness. Green Belts can shape patterns of urban development as sub-regional and regional scale, and help to ensure that development occurs in locations allocated in development plans. They help to protect the countryside, be it in agricultural, forestry or other use. They can assist in moving towards more sustainable patterns of urban development….
Purposes of including land in Green Belts
1.5 There are five purposes of including land in Green Belts:
- to check the unrestricted sprawl of large built-up areas;
- to prevent neighbouring towns from merging into one another;
- to assist in safeguarding the countryside from encroachment;
- to preserve the setting and special character of historic towns; and
- to assist in urban regeneration, by encouraging the recycling of derelict and other urban land."
The substance of those aims is repeated in paragraphs 79-80 of the NPPF.
"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances….
3.2 Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development."
The substance of that guidance is retained in paragraphs 87-88 of the NPPF:
"87. As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.
88. When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations."
Ground 1: The Inspector's conclusion that the development had a significant adverse visual impact was founded upon a factual finding for which there was no evidential basis, namely that the development is "… prominent from private land within the Conservation Area, including the first floor windows of houses on High Street…".
Ground 2: The Inspector erred in her approach in relation to the best interests of the children of the Claimant's extended family.
Ground 1: Improper Factual Finding
Ground 2: The Interests of the Children
The Claimant's Children
"Both children attend regularly, are polite and well behaved and are integrated into the school."
There were apparently other children of school age on the site, but no evidence as to any schooling they might have had. The only other evidence before the Inspector specifically concerning the children was that one of the older children had apparently recently been to hospital.
"The Appellant and her family have a need to be settled. There is a general benefit in them having a settled base from which to access educational and medical services. The Appellant's eviction from the site would be likely to result in enforced roadside camping. This would have implications not only for herself and her family, but also could also result in adverse environmental and other impacts elsewhere. These are all factors to which a moderate amount of weight can be attributed."
Identification of the Issues
"On any application under this section the High Court... if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order or action."
"56… The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
57. This distinction between whether something is a material consideration and the weight it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or Secretary of State."
In Alconbury, having considered the relevant European Court authorities, Lord Hoffmann (at ) said that those cases did not require the court to substitute its decision for that of the administrative authority, and that such a requirement would not only be contrary to the jurisprudence of the European Court but "profoundly undemocratic".
"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."
Given the nature of those rights, and the scope of planning decisions, it is likely that article 8 will be engaged in many planning decision-making exercises. In particular, there will often be relevant children; and the manner in which their interests should be taken into account in such circumstances is in issue in this application.
"The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated";
and, consequently, what matters in any case is "the practical outcome, not the quality of the decision-making process" (at ).
"We have also concluded that the appellant's rights under article 10 of ECHR and article 1 of the First Protocol to the convention were engaged and that the council failed to conduct the necessary balancing exercise in order to determine whether interference with those rights could be justified. The circumstances of the case are not such as would enable the conclusion to be reached that, if the council had considered the matter properly, it is inevitable that the application would have been rejected.
On that basis, the council would have to reconsider the licence application, this time properly performing the balancing exercise that proportionality required.
"The first, and most straightforward, question is who decides whether or not a claimant's Convention rights have been infringed. The answer is that it is the court before which the issue is raised. The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."
Lord Hoffmann put it even more bluntly. It did not matter, he said, whether the council had or had not indulged in any "formulaic incantation" with regard to proportionality:
"Either the refusal infringed the respondent's Convention rights or it did not. If it did, no display of human rights learning by the Belfast City Council would have made the decision lawful. If it did not, it would not matter if the councillors had never heard of article 10 or the First Protocol" (at ).
The fact that the council had not engaged with the proportionality exercise they, as a public authority performing public functions, were required to perform by virtue of section 6 of the Human Rights Act 1998, was not an error which was of any legal moment – because the court was bound to conduct that exercise itself, in any event. Unsurprisingly perhaps, on the facts of the case, each of their Lordships had no difficulty in finding that that the restriction of such activities on social policy grounds was an entirely proportionate interference with the rights of the pornography peddling licence applicants.
Article 8 and Planning Decisions
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
When a child's article 8 rights are engaged, they must be looked at in the context of the UNCRC or, as it has been put, "through the prism of article 3(1)" (HH v Deputy Prosecutor of the Italian Republic, Genoa; F-K v Polish Judicial Authority  UKSC 25;  4 All ER 539 ("HH") at  per Lord Wilson).
"The rights of children under article 8 must be examined through the prism of article 3(1)…. Thus, in the present inquiry, article 8 affords to the best interests of the three children a substantial weight which, following examination, other factors may earn and even exceed but with which, under the law of the article, they do not start."
In other words, before any consideration of the individual circumstances of the child or any other material considerations, the best interests of any child can be said to have "a substantial weight" in the sense of an importance that no other consideration exceeds; but that evaluation may alter once the individual circumstances of those interests and other factors are considered and assessed. Therefore, whilst it might be said at a policy level that a particular factor should be given a particular "weight" (e.g. "moderate" or "substantial"), where it is the very function of a decision-maker to attach weight to considerations which are material to the decision he is required to make, as he proceeds with his examination of the circumstances of an individual case, he must adjust the relative weighting to that which, in his judgment, the circumstances of the case require. On examination of all the material factors, the importance of one consideration may reduce (or, of course, increase), compared with others. There is no reason why any such change cannot properly be reflected in the designation given to the weight of those factors: it is not sensible to require a decision-maker to stick formulaically with the designation he is required to start with. The matter is one of substance, not form. That applies equally to weight or importance that policy documents such as PPG2 require to be afforded to particular planning public policy factors, and to the weight or importance that article 3 of the UNCRC requires as a matter of policy to be given to the best interests of a child.
"… This means, in my view, that such interests must always be at the forefront of any decision maker's mind, rather than that they need to be mentioned first in any formal chain of reasoning or that they rank higher than any other considerations. A child's best interests must themselves be evaluated. They may in some cases point only marginally in one, rather than the other, direction. They may be outweighed by other considerations pointing more strongly in another direction."
This also, it seems to me, explains the judgment of Lord Kerr (at ), where he said that "no factor can be given greater weight than the interests of the child". He was there referring to the inherent importance of the best interests of a child.
i) Given the scope of 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 those of 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 those of 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 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 interests of 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 the child is proportionate.
vi) Whether the decision-maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his 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 that impact is in all the circumstances proportionate. I deal with this further in considering article 8 in the context of court challenges to planning decisions, below.
Article 8 and Court Challenges to Planning Decisions
"This is an area of social control in which the Strasbourg court has always accorded a wide margin of appreciation to member states, which in terms of the domestic constitution translates into the broad power of judgment entrusted to local authorities by the legislature. If the local authority exercises that power rationally and in accordance with the purposes of the same, it would require very unusual facts for it to amount to a disproportionate restriction on convention rights."
"… [W]here [a decision-maker] has properly considered the issue in relation to a particular application, the court is inherently less likely to conclude that the decision ultimately reached infringes the applicant's rights."
(See also SB at  and  per Lord Bingham; and Miss Behavin' at  per Lord Rodger, and at  per Baroness Hale). That deference will be the stronger when the primary decision-maker is particularly expert and/or experienced (and especially so when Parliament has assigned him as decision-maker on the basis of that expertise and/or experience) and/or acts in a quasi-judicial capacity, as a planning inspector does.
i) It was common ground before me that, for the purposes of section 70 of the 1990 Act, any article 8 rights that are in play are a material consideration that a planning decision-maker is bound to take into account. I have no doubt that that is so. It is well-established that, in a field such as planning, the interests of any relevant children cannot properly be regarded as something distinct and apart from the necessary section 70 balancing exercise: they are an inherent, integral, and important, part of that exercise. As Weatherup J said in In re an Application by HM (A Minor)  NIQB 85 at  :
"… [T]he type of balancing exercise that is required to satisfy Article 8 it is an inherent part of the planning process in which the planning authorities balance public and private interests."
That principle has been consistently confirmed by our courts (see Lough at  per Pill LJ; McCarthy v Secretary of State for Communities and Local Government  EWHC 3287 at [39(f)] per His Honour Judge Gilbart QC sitting as Deputy High Court Judge (permission to appeal being refused on this ground:  EWCA Civ 510); Langton v Secretary of State for Communities and Local Government  EWHC 3256 (Admin) at  also per Judge Gilbart; Flattery v Secretary of State for Communities and Local Government  EWHC 2868 (Admin) at - per Lindblom J; AJ (India) v Secretary of State for the Home Department  EWCA Civ 1191 at  per Pill LJ; and HH at  per Lord Mance, quoted above at paragraph 65).
ii) If the inspector fails to take a material consideration into account, as a matter of general public law principles, he errs in law. Section 70 requires him to take all material considerations into account; and, if he fails to do so, his decision is not "within the powers of [the 1990] Act" for the purposes of section 288(5)(b) (quoted at paragraph 34 above).
iii) By section 288(5)(b), this court is restricted by way of remedy to quashing a decision of an inspector that is not within the powers of the 1990 Act. It is therefore necessarily the case that, even if this court considers an inspector's decision unlawful on the ground that he failed properly to take into account as a material consideration article 8 rights in play, then it can only quash that decision. It would not be open to this court to make a new decision in its place.
iv) In this application, neither party suggested that, if I were to find the inspector had failed properly to take into account the relevant article 8 rights, then this court should begin performing the section 70 balancing exercise giving the weight I considered appropriate to all of the material considerations, including all planning policy factors as well as article 8 rights. Indeed, all parties appeared to view that prospect with some alarm. They submitted that I should treat the case as any other case of a failure of an inspector to take into account a material consideration. All submitted that, if that error is material (in the sense that, without it, the decision would or may have been different) then I should quash the decision.
i) The application does not require a full merits review. It requires review on traditional judicial review grounds, together with consideration of whether the resulting decision engages article 8 and, insofar as it does, whether the adverse impact of the decision on the article 8 rights engaged is proportionate to the legitimate aims sought to be protected (including both the public interest, and the rights and interests of other individuals).
ii) In considering whether the decision breached relevant article 8 rights, the court is required to consider the merits, with appropriate scrutiny, but it should do so bearing in mind that the inspector's function, assigned to him by the statutory scheme and ultimately Parliament, is to consider the merits of all material considerations, including any article 8 rights that are engaged. The inspector is an expert and experienced, and acts in a quasi-judicial capacity, which each warrant a wide margin of discretion. He is acting in an area of social policy, which in itself attracts a wide margin of discretion. As a result, considerable deference ought to be attached to his conclusion.
iii) Proportionality is a question of substance and not form. If the inspector has clearly engaged with the article 8 rights in play, and considered them with care, given his wide margin of discretion, it is unlikely that the court will interfere with his conclusion on grounds of proportionality. If he has not –even if he has not referred to article 8 rights at all – on usual principles, the court will not quash his decision if his error is immaterial. If his error is material, then it is open to the court to find that the interference with the relevant human rights is in any event proportionate; or quash the decision.
Application of the Principles to this Application
- The need for additional Gypsy sites.
- The Development Plan Gypsy policy background.
- The personal needs and circumstances of the site occupants.
- Human rights".