Mr Justice Hickinbottom:
- This application, made under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act"), raises important issues as the approach of both planning decision-makers and the court to proportionality in circumstances in which a planning decision engages the right to respect for family life under article 8 of the European Convention on Human Rights, and in particular involves the rights of children.
- The Claimant Jane Stevens and her family are Gypsies, for whom living in caravans is an integral part of their ethnic identity, recognised under both European law (Commission for Racial Equality v Dutton  QB 783) and domestic law (for example, as a protected characteristic under the Equality Act 2010).
- The Claimant lives with her partner and extended family, which includes several children. Since mid-2009, they have lived on land known as The Paddocks, Rose Lane, Ripley, Woking, Surrey ("the Site"), a plot of agricultural land, divided off from open paddock land, without any planning history, which they have developed into a caravan site for two static and three touring caravans, together with a hardstanding, utility shed, and cess pool, and a stable block and yard for keeping horses. The family group includes two young children who in the year to June 2010 attended a local primary school.
- On 22 May 2009, the Claimant applied to the Second Defendant planning authority ("the Council") for retrospective planning consent for the stationing of the caravans etc on the Site as a single family site.
- The Site abuts the Ripley Conservation Area, and is located within a Green Belt and, as such, it has been the subject to central government guidance from time-to-time. At the relevant time, that guidance was contained in the Secretary of State's Planning Policy Guidance Note PPG2 "Green Belts" ("PPG2"), upon which this judgment focuses. PPG2 has since been replaced by the National Planning Policy Framework ("the NPPF"), although the relevant aims and provisions in the new guidance do not appear to have altered materially.
- The aim of the policy was set out in paragraphs 1.4 and 1.5 of PPG2, thus:
"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.
- How those aims were translated into practice is set out in paragraphs 3.1 and 3.2 of PPG2, which imposed a presumption against inappropriate developments (i.e. developments which conflict with the purposes of including land within the Green Belt and do not maintain openness):
"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."
- Therefore, by definition, any inappropriate development will result in harm to the Green Belt; and, under both PPG2 and the NPPF, in making planning decisions, planning authorities (and, in their turn, inspectors appointed by the Secretary of State to decide appeals) were and are required to give "substantial weight" to such harm; but that potential harm might nevertheless be outweighed by other material considerations. Where it is clearly outweighed, then a development that harms the Green Belt may be allowed.
- PPG2 indicated that, as a matter of policy, any material change in the use of Green Belt land would be inappropriate unless it maintains openness and does not conflict with the purposes of including land within the Green Belt. The Claimant has throughout rightly conceded that the change of use of the Site which has taken place does constitute an inappropriate development, and that the development does result in a loss of openness.
- She also accepts that the Site is not suitable, in planning terms, as a permanent base for her and her extended family. Consequently, when she applied for retrospective planning permission, she did so for temporary permission, for a period of four years.
- That period was chosen because, whilst at the relevant time Gypsy and Traveller sites were generally sparse (for the historical background, see R (Knowles & Knowles) v Secretary of State for Work and Pensions  EWHC 19 (Admin) ("Knowles & Knowles") at -) and there was a need for further sites in the local area, in 2006 a Gypsy and Traveller Accommodation Assessment was carried out on behalf of the Council and other adjacent local authorities. At the relevant time, the Council was preparing a Site Allocation Development Plan with a view to addressing that need through the provision of new sites; and it was expected that a timetable for the identification of sites would be in place within 3-4 years. Planning Circular 01/2006, "Planning for Gypsy and Traveller Sites", advised that, where there was an unmet need but a reasonable expectation that new sites would likely become available to meet that need, then local authorities should consider granting temporary permission. The Claimant considered that four years would give sufficient time to pursue a grant of planning permission for another site in the light of the expected Site Allocation Development Plan. There is no evidence before me as to how the assessment of need for further Gypsy and Traveller sites and the identification of sites to meet any such need has progressed, if at all, since then.
- The Claimant's application for planning permission was refused by the Council on 19 February 2010. On 22 March 2010, the Council issued an enforcement notice, requiring the use of the Site as a caravan site to cease, and for the permanent removal of all caravans etc within three months.
- The Claimant appealed against both the refusal of planning permission and the enforcement notice. As his inspector, the Secretary of State appointed Wendy McKay ("the Inspector"), who consolidated the appeals. There was a hearing and a site visit on 21 September 2010, at which the Claimant was represented by Ms Alison Heine, a planning consultant. On 11 January 2011, the Inspector issued a decision refusing both appeals, except she varied the enforcement notice to give a year (rather than three months) for compliance.
- In this application, the Claimant seeks an order under section 288 of the 1990 Act to quash the Inspector's decision dismissing the Claimant's appeal against the Council's decision to refuse retrospective planning permission. No challenge has been made to the Inspector's decision in relation to the enforcement notice.
- The section 288 application is made on two grounds, namely:
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.
- I will deal with those grounds in turn.
Ground 1: Improper Factual Finding
- This ground developed during the course of the proceedings. Initially, it was put primarily on the basis that the Inspector did not make her concerns about the visual impact of the development clear; so that the Claimant did not have a proper opportunity to address those concerns, in breach of both regulation 14 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000 (SI 2000 No 1626) and the rules of natural justice. However, at the hearing before me, Mr Willers for the Claimant refocused the ground, conceding that visual impact was raised as an issue before the Inspector, but contending that she erred in finding that the development was "… prominent from private land within the Conservation Area, including the first floor windows of houses on High Street…" because there was no evidence upon which such a finding could properly have been made. That finding was the basis of the Inspector's conclusion that the development had a significant adverse visual impact, a conclusion to which she gave "moderate weight" in assessing whether the balance was in favour of granting planning permission. Without that factor in the balance, Mr Willers submitted that the Inspector could have made a different decision; and therefore the decision she did make should be quashed.
- However, I do not find that submission at all persuasive.
- There was quite clearly evidence upon which the Inspector was entitled to make the challenged finding. There was evidence from Ripley Parish Council that: "The development is clearly visible from Ripley Conservation Area by users of Ripley Court Playing Fields and the Scout HQ and the residents of Chapel Farm and other properties on the west end of the High Street as the development is on raised ground" (4 November 2009 letter from the Clerk to the Council). A resident of one of the West End cottages in the High Street also said: "The development is in fact in full view from the rear of West End Cottages" (6 November 2009 letter). Indeed, before the Inspector Ms Heine on behalf of the Claimant accepted that, "[The site] can be seen from the first floor windows of houses on the High Street in Ripley" (which is in the Conservation Area) – although, in her opinion, that was not harmful to views out of the Conservation Area, because it was across several fields (May 2010 Report, page 3; and Hearing Statement, paragraph 2.5). In addition, although she did not of course go into any of the High Street houses, the Inspector did attend a site visit, and at least viewed the High Street from the development site.
- With respect to Mr Willers' resilient attempt to do so, it is simply not arguable that the Inspector did not have any evidence upon which to make the finding that she did. As I have indicated, leaving aside other evidence, it was conceded by the Claimant that the development could be seen from the properties on the High Street, or some of them; and, in particular, from the first floor of those properties. The extent to which that view was harmful – and, indeed, the extent to which the development was "prominent" from the High Street properties – were matters of planning judgment for the Inspector.
- There is no even arguable error by the Inspector in respect of this ground.
Ground 2: The Interests of the Children
- As the Claimant's main ground, Mr Willers submitted that the Inspector had erred in her approach to the rights and interests of the Claimant's children. He accepted that the Green Belt policy in PPG2 had a number of legitimate aims in the public interest (see paragraphs 6-9 above). However, he submitted that the Inspector was correct in considering that, in the exercise she undertook of balancing the various considerations material to the planning decisions with which she was concerned, Article 8 was engaged, such that the rights of the Claimant and her children to respect for their family and private life had to be taken into consideration. In the balancing exercise of public interest and private rights inherent in the planning decision to be made, as a public body the Inspector was required to consider whether the dismissal of the appeal would have a disproportionate adverse effect on the Claimant's children.
- Whilst, as Mr Willers accepted, on the face of her decision the Inspector performed that exercise, he submitted that she failed properly to take into account the best interests of the children. Article 3 of the United Nations Convention on the Rights of the Child ("the UNCRC") and ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4;  2 AC 166 ("ZH (Tanzania)") require the best interests of the children to be "a primary consideration" in any proportionality assessment under article 8, i.e. those interests must be identified and given at least as much weight as any other material consideration. The Inspector erred because, as required by paragraph 3.2 of PPG2 (see paragraph 7 above), she gave the harm caused to the Green Belt by the inappropriate development "substantial weight"; but gave the best interests of the children only "moderate weight". The failure to give the interests of the children the weight she was required to give them was fatal to her determination to dismiss the appeal; because, if she had given proper weight to those interests, her determination might have been different. Her decision to dismiss the Claimant's appeal should consequently be quashed.
- Mr Philpott for the Secretary of State submitted that, although the Inspector was not referred to the UNCRC and her decision was prior to the delivery of the Supreme Court judgments in ZH (Tanzania), she did not err. In substance, she treated the best interests of the Claimant's children appropriately, and in accordance with the requirements of article 8 and the UNCRC.
The Claimant's Children
- Before I come on to deal with the legal principles, it would be helpful to set out the evidence before the Inspector relating to the Claimant's children.
- Specific evidence was sparse. It primarily concerned the schooling of the two children who were at that time in local primary school, and comprised a letter from the Headteacher dated 24 June 2010. That letter formally set out the children's achievements at the school. One had made good progress, but it was thought necessary that she repeat the year she had just completed. The attainment of the other was two years behind her chronological age, and she had had additional tuition funded by Traveller Education Support. The letter concluded:
"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.
- In her decision, at paragraph 40, the Inspector faithfully set out all of that evidence concerning the children. More generally, she noted that the Council accepted that there was an unmet need for Gypsy sites in its area; and found that there was then no alternative site provision to meet that shortfall in Gypsy site provision. Specifically, she found that there were no alternative pitches on any other Gypsy sites in the Council's area which were currently available for the Claimant and her family. Consequently, if the enforcement notice were upheld and they were evicted from the site, then it was likely that they would be living "on the road" and moving from one unauthorised site to another (paragraph 35).
- The Inspector set out her conclusion thus (paragraph 48):
"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."
- In the face of the PPG2 requirement that harm to the Green Belt be given "substantial weight", it is that attribution of only "moderate weight" to the best interests of the children of which particular complaint is now made.
- With regard to the children there was no further evidence before me, as to the position either at the time of the Inspector's report (September 2010) or now. Nor was there any evidence of any progress that might have been by the Council, for example, in identifying additional land for Gyspy sites.
Identification of the Issues
- The use of land is not an absolute right: by its very nature, particularly in a country such as this with its limited available land, it requires some control.
- Regulation of land use is essentially a matter of public policy, which is required to balance the interests of individuals to use their land as they wish, the rights and interests of other landholders, and the obvious public interest in controlling development.
- The political nature of planning decisions is reflected in the scheme which regulates them. Thus, planning permission from the local planning authority is required for any development of land (section 57(1) of the 1990 Act); and the determination of a grant of planning permission must be made having regard to the relevant provisions of "the development plan" and "to all other material considerations" (section 70(2)). What constitutes "the development plan" is prescribed by statute (section 38 of the Planning and Compulsory Purchase Act 2004): broadly, in the public interest, it seeks to prioritise land for development, and to protect a variety of characteristics. When preparing a development plan, a local planning authority has to take into account guidance issued by the Secretary of State, which indicates matters that are to be given particular consideration or weight in the public interest. Where regard must be given to the development plan in a planning determination (including a determination of a grant of planning permission), then "the determination must be made in accordance with the plan unless material considerations indicate otherwise" (section 38(6) of the 2004 Act). In respect of individual decisions granting or refusing planning permission, under section 78 of the 1990 Act there is a statutory appeal to the Secretary of State who usually conducts such an appeal through an inspector from the Department's Inspectorate, who has appropriate planning experience and expertise.
- The 1990 Act also provides procedures for making application to this court to question the legality of a development plan (section 287), or of other decisions identified in section 284 including (by virtue of section 284(3)(b)) an inspector's decision on an appeal under section 78 (section 288). In either case, in recognition of the fact that this court generally does not have the particular appropriate expertise to make planning judgments, this court's powers of relief are limited to quashing the relevant decision, if found to be unlawful. Section 288(5)(b) therefore provides:
"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."
- The courts themselves have long-recognised that town and country planning involves acute, complex and interrelated social, economic and environmental implications, and that Parliament has consequently entrusted its regulation to administrative decision-makers with planning experience and expertise, namely planning authorities (whose planning officers and committees also have local knowledge), and on appeal the Secretary of State acting through inspectors. Certainly, the courts have eschewed any suggestion that they should engage with the merits of planning decision-making, leaving such decisions to the appointed decision-makers, on the basis of guidance promulgated by the Secretary of State. It is well-recognised by the courts that planning decisions quintessentially require planning judgments of fact and degree, the merits of which are a matter entirely for the appointed administrative decision-makers. The limited role of the court in these circumstances has been emphasised in a number of cases (see, e.g., R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  UKHL 23;  2 All ER 929 ("Alconbury") at  per Lord Nolan,  per Lord Hoffmann and  per Lord Clyde; and R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions  EWHC 74 (Admin) ("Newsmith") at  per Sullivan J as he then was). This principle was forcefully emphasised by Lord Hoffmann in the following passage from Tesco Stores Ltd v Secretary of State for the Environment  UKHL 22;  1 WLR 759 ("Tesco Stores") at -:
"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".
- Hence, according to this principle, in any challenge to such a planning decision, the courts are restricted to considering the legality of the decision-making process. The principle is well-established. Indeed, hardly a challenge to an inspector's decision goes by without the party seeking to uphold it referring to that passage from Lord Hoffmann's opinion in Tesco Stores, and relying upon it as incontrovertibly establishing that principle.
- Of course, that does not mean that a planning determination cannot be challenged in the courts: effectively, it may be challenged on any of the conventional public law grounds, which are the basis of section 288 challenges and which of course focus on process (see Seddon Properties Ltd v Secretary of State for the Environment (1978) 42 P & CR 26). So a challenge can, for example, be founded on the ground that the decision-maker's approach to the decision-making exercise was wrong.
- It is also a ground of challenge that the decision-maker has reached a conclusion that is perverse or Wednesbury unreasonable, i.e. it is outside the range of decisions to which a decision-maker could reasonably come. However, to prove Wednesbury unreasonableness in a planning context is particularly challenging, because it has long been recognised that planning decision-makers have a wide margin of discretion within which they can make a lawful decision, because (i) the decision involves the application of social policy (see Connors v United Kingdom (2005) 40 EHRR 9 at paragraph 82); (ii) the decision requires consideration of complex multiple policy-based planning issues in respect of which there is a significant element of judgment involved, properly reserved to the executive (see the references to Alconbury and Newsmith at paragraph 35 above); and (iii) as a planning committee of a local planning authority or as an inspector on behalf of the Secretary of State, the decision-makers have particular of expertise and experience, and indeed have been chosen under a statutory scheme precisely because they have that expertise and experience. For similar reasons, and to reflect that wide margin of discretion, the courts pay considerable deference to a planning decision by one of those decision-makers.
- In terms of how a planning decision-maker must lawfully approach his task, by virtue of section 70 of the 1990 Act he is required to take into account all material considerations. Although I shall return to this point in the context of the court's approach to section 288 applications (see paragraph 85(i) below), it was common ground before me that, as a matter of domestic law, for the purposes of section 70, "material considerations" include any article 8 rights that are engaged. Article 8 of the European Convention on Human Rights 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."
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.
- Furthermore, the engagement of article 8 also gives rise to a potential problem for courts that are required to consider challenges to planning decisions which engage article 8, because, whilst planning decisions quintessentially involve matters of planning judgment, into the merits of which the courts have firmly declined to stray, on a challenge to a decision for breach of human rights, the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School  UKHL 15:  1 AC 100 ("SB") and Miss Behavin' Ltd v Belfast City Council  UKHL 19;  3 All ER 1007 ("Miss Behavin'")).
- Thus, in SB, Lord Bingham said (at ):
"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 ).
- The question of the court's role in such a case was directly in issue in Miss Behavin'. The case concerned an application for a licence for a Belfast backstreet sex shop, in the face of determination by the council that the appropriate number of sex shops in that area was "nil". The sale of pornography, just, engages the right to freedom of expression in article 10. In refusing a licence for the sex shop, the council failed to take into account the harm to those rights that a refusal of a licence would entail. The Northern Ireland Court of Appeal held that they erred in failing to do so, and they set aside the decision ( NICA 35), the judgment of the court (Kerr LCJ, Sheil LJ and Hart J) finding, in traditional judicial review terms (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.
- However, the House of Lords held that this was the wrong approach for the court to have taken. Baroness Hale said (at ):
"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.
- But, in coming to that conclusion, they considered the merits, and gave the weight they considered appropriate to the various material considerations, including social policy of not having sex shops in that part of Belfast (a good deal) and to the harm to the right of freedom of expression (not much). In doing so, they reflected the comments of Lord Steyn in (R (Daly) v Secretary of State for the Home Department  UKHL 26;  2 AC 532 ("Daly") at , that, when a court considers proportionality, it may be necessary to attend to "the relative weight accorded to interests and considerations" by the primary decision-maker.
- It can therefore be seen at once that, where the courts are required to adjudicate upon a planning decision where article 8 is engaged, there is, at first blush, tension between well-established planning jurisprudence and now equally well-established human rights principles with regard to the correct approach.
- This application gives rise to issues concerning both the approach of a planning decision-maker when article 8 is engaged, and approach of the court when planning decisions are challenged. I will deal with those issues in turn.
Article 8 and Planning Decisions
- In this application, article 8 is undoubtedly engaged; and Mr Philpott, rightly, did not suggest otherwise.
- In determining a planning application, a local planning authority and an inspector appointed to deal with a section 78 appeal are exercising public functions, and are "public authorities" within the meaning of section 6 of the Human Rights Act 1998. It would therefore be unlawful for them to make a decision which is incompatible with a Convention right, including the article 8 right to respect for family life. As I indicate below (paragraph 85(i)), I consider that it is uncontrovertible that, where article 8 rights are is in play, they are a material consideration for the purposes of section 70 of the 1990 Act. That was, as I have indicated, common ground before me.
- In this case, the Inspector found that, if planning permission were refused and the enforcement notice stayed in place, and as a result the Claimant and her family were evicted from the Site, then they would be unlikely be able to find a legal site and they would be forced to pitch at the roadside. In particular, that would have a significant adverse impact upon the children. Over and above the obvious adverse impact that such disruption would cause, the two children in school would lose the stable home that has enabled them to obtain schooling and, no doubt, other facilities such as health services. Article 8 was in play.
- However, the right to respect for family life is not absolute: interference with that right can be justified by the state if that interference is (i) for a legitimate aim, (ii) in accordance with the law, and (iii) necessary in the public interest. In this case, as Mr Willers accepted, the dismissal of the planning appeal by the Inspector was for a legitimate aim namely the protection of a Green Belt (see paragraphs 5 and following above), and was in accordance with the domestic planning regime.
- Whether the interference is "necessary" in this context, is dependent upon whether it is proportionate to the legitimate aims pursued by the state. It has always been recognised that that requires a context-specific exercise to be performed, in which "the nature, context and importance of the right asserted and the extent of the interference… must be balanced against the nature, context and importance of the public interest asserted as justification" (Human Rights Law and Practice, Lester & Pannick, 1st Edition (1999) at paragraph 4.8.43). With the benefit of over a decade of applying the provisions of the Convention through the Human Rights Act 1998, it is now clear that this balancing exercise is a particularly sophisticated one (see, and compare with the above extract from the 1999 Edition of the same book, Human Rights and Practice, Lester, Pannick and Herberg, 3rd Edition (2009) at paragraph 4.8.4, to which I am indebted).
- In particular, article 8 concerns a broad range of often ill-defined personal interests, many of which may be in play at the same time. Some are negative rights, requiring the state to refrain from interfering with family or private life; whilst others are positive rights, requiring the state to facilitate family or private life in some particular way: for example, article 8 imposes a positive obligation to facilitate the Gypsy way of life (Chapman v United Kingdom  33 EHRR 18 at paragraph 96). Any individual is likely to have a number of article 8 interests, which themselves may be diverse and, in any balancing exercise, some may fall on one side of the balance whilst others my fall on another side.
- Whilst those interests demand "respect", they are of course not guaranteed. The public interest and/or the rights and interests of others may justify interference with an individual's article 8 rights; and, just as the possible interests covered by article 8 are wide-ranging and diverse, so are the potential justifiable limitations. In addition to matters of public interest (which may themselves be many and/or diffuse), in most decision-making exercises involving an individual's article 8 rights, there are likely to be a number of other individuals, each of whom may have his or her own article 8 rights and other legitimate interests, which again may not all fall on the same side of the balance. Furthermore, the decision-making process may not simply be binary: there may be several or even many possible resulting decisions. For example, a planning decision in favour of a grant may be subject to any number of various conditions; and the effect of a decision which would requires removal of a development may be postponed for a period.
- Therefore, whilst this balancing exercise "is inherent in the whole Convention" (Cossey v United Kingdom (1990) EHRR 622 at paragraph 37), because of the multi-stranded nature of article 8 and its concern with relationships between individuals as well as the relationship of individuals and the state, the exercise is often singularly complex when article 8 is in play. The result is that "… the [European Court of Human Rights] is increasingly approaching the issue of justification [in the context of article 8] by use of such fair balance analysis"(paragraph 4.8.4 of Lester, Pannick and Herberg, 3rd Edition). Another result is that a decision-making exercise involving article 8 rights, especially in a complex setting, may be amenable to more than one, perfectly lawful, result.
- Where action by the state affects a family, whether the action is disproportionate in its interference with their article 8 rights has to be looked at by reference to the family unit as a whole and by reference to the impact upon specific individual members of the family (Beoku-Betts v Secretary of State for the Home Department  UKHL 39;  AC 115 at  per Lord Brown of Eaton-under-Heywood). Where those family members include children, then their article 8 rights have to be interpreted in the light of general principles of international law, including obligations imposed on the state by international conventions (ZH (Tanzania) at - per Baroness Hale). In this context, the most important obligations on the United Kingdom are those derived from the UNCRC. Article 3(1) provides:
"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).
- At the hearing before me, Mr Philpott initially sought to argue that the relevant provisions of the UNCRC (and, hence, the principles of ZH (Tanzania) derived from it) do not apply to planning determinations by the Secretary of State, because they have not been incorporated into our domestic law in respect of such decisions, neither section 11 of the Children Act 2004 nor section 55 of the Borders, Citizenship and Immigration Act 2009 (both of which were referred to in ZH (Tanzania)) as applying to the Secretary of State in this context. However, in his written submissions of 23 January 2013, Mr Philpott conceded (if I might say so, rightly) that, in the light of HH, R (MP) v Secretary of State for Justice  EWHC 214 (Admin), R (Collins) v Secretary of State for Communities and Local Government  EWHC 2760 (Admin) especially at -, and AZ v Secretary of State for Communities and Local Government  EWHC 3660 (Admin) especially at [81(4)], article 3(1) of the UNCRC and the principles of ZH (Tanzania) do apply to planning determinations of both local planning authorities and the Secretary of State. Consequently, it became common ground that, in making her determination, the Inspector was bound to treat the best interests of the Claimant's children as a "primary consideration"; the remaining issue being as to whether the Inspector's decision to refuse the appeal against the refusal of planning permission did, in substance, do so (as Mr Philpott submitted) or not (as Mr Willers contended).
- The question of what is meant by treating the best interests of the children as "a primary consideration" has vexed a number of courts, and it occupied a considerable amount of the debate before me. There is at its heart a challenging issue; but that can be pared down, by disposing of matters which are not, in my view, as difficult.
- First, it seems to me, as the cases repeatedly confirm, that article 3 of the UNCRC self-evidently requires the identification of what the best interests of any child are. In some cases, perhaps where the interests of a child and his primary carer are not necessarily the same, that may itself be a testing question; but in most contexts there is unlikely to be any antagonism between the wishes of that carer and a child's best interests, and the question of what the best interests of the children are may not be difficult. In a planning context, in which the child lives with a parent or other primary carer who has an interest in the relevant planning proceedings, a stable home is almost always going to be in that child's best interests, together with all that that brings including educational opportunities. Where that home is put in jeopardy in a planning application (and particularly where the result may be homelessness, or camping by the roadside), the interests of a carer who has an interest in the application and the best interests of the child are most likely to coincide, as they do in this case. In cases in which those interests do coincide, the carer will usually be in the best position to put forward evidence as to the potential adverse impact a decision may have upon any child; and the planning decision-maker (or, in any challenge, the court) will be entitled to assume that any and all relevant evidence of the child's best interests is put before it by that carer. Although of course there may be cases in which circumstances are such that carers cannot be relied upon to ensure that a child's best interests are brought fully to the attention of the court, it will not usually be necessary for the decision-maker or court to make its own enquiries as to evidence that might support those obvious best interests. To that extent, I respectfully disagree with the comments of His Honour Judge Thornton QC sitting as Deputy High Court Judge in the context of planning enforcement proceedings in Sedgemoor District Council v Hughes  EWHC 1997 (QB) at , that a planning decision-maker or the court will routinely be required to produce social enquiry or welfare reports on all children whose interests are or may be adversely impacted by any planning decision or even any planning enforcement decision.
- Second, article 3 clearly does not make the best interests of any child determinative, such that no decision can be taken other than one in conformity with those interests (ZH (Tanzania) at  per Baroness Hale). Nor does it mean that the best interests of any child are "paramount" or "the primary consideration" (ZH (Tanzania) at  per Baroness Hale).
- Third, with respect to the judges who have taken a different view (see, e.g., HH at - per Lord Kerr), in my view it does not mean that the identified best interests of any child must be considered temporally or logically first – and then the cumulative effect of other considerations assessed to evaluate whether they outweigh those interests. Whereas that may possibly be a valuable approach in some cases (for example, in the relatively simple, and vanishingly rare, case where the only rights and interests in contention are a single identifiable public interest, and the easily identifiable article 8 rights of a single child), where the best interests of children are only one factor amongst a complex panoply of public and private interests and rights, it is in my view unlikely to be appropriate. Whilst of course the UNCRC and ZH (Tanzania) require the best interests of children to be taken into account in a specific way, I do not consider that that requires such a gross distortion of the well-established planning decision-making process, or similar processes in other administrative fields where social policy factors are in play with full force and the adverse impact on children is indirect. Indeed, in a field such as planning, I would regard that approach as usually wrong, because 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 integral, and important, part of that exercise (see paragraph 85(i) below, and the authorities referred to there).
- The real question, therefore, is this: if any child's best interests are not determinative of a planning issue, what is the consequence of making them "a primary consideration" rather than simply "a material consideration"?
- Mr Willers submitted that they must be given more, or at least as much, weight as any other consideration. However, there is room for confusion here. Human rights only have life in the context of an individual case: they cannot exist in a vacuum, and can only be properly considered in a case-specific context. The weight to be given to article 8 rights in a particular case will depend upon (in the words of Lester & Pannick: see paragraph 51 above), "the nature, context and importance of [the] right or interest" and, because weight is a concept which inherently involves relativism, also "the nature, context and importance of the public interest asserted as justification" – as well as, one might add, the nature, context and importance of the rights and interests of other individuals where these are engaged. As Lord Steyn said in Daly at , in cases involving Convention rights, as in the law generally, "context is everything".
- The "weight" of a consideration is merely a reference to the importance attached to it. Although I do not wish to become embroiled in concepts of deep physics or philosophy, in my respectful view, confusion has arisen because "weight" in the context of the exercise required by section 70 (of taking into account, when making an relevant planning decision, all material considerations) has been used in two different ways: the inherent weight or importance of a factor at a policy level before consideration of the individual circumstances, and the weight or importance of a factor, relative to other factors, after that examination. That distinction is effectively identified by Lord Wilson in HH at , when he says, of the UNCRC article 3 imperative:
"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.
- Where reference is made to the "weight" of a consideration, it is therefore important to identify whether this is a reference to the importance attached to that consideration as a matter of policy, without consideration of the individual circumstances of a particular case; or whether it is a reference to the weight of that consideration relative to other considerations after an examination of all material considerations by a decision-maker in the context of a specific case.
- Article 3(1) of the UNCRC and ZH (Tanzania) are concerned with the importance that, as a matter of policy, should be attached to the best interests of a child when those interests are in play in a decision-making process. That is why Baroness Hale said that no other material consideration can be treated as "inherently more significant than the best interests of the children" (ZH (Tanzania) at  per Baroness Hale); in other words, no other consideration should be regarded as inherently more important than the best interests of any child, simply because of its own nature. That is focused upon the importance of the best interests of the children without examination of the individual circumstances of the case. Upon investigation of those circumstances and assessment of all material factors, however, as Lord Wilson explains (in HH at , quoted at paragraph 63 above), other factors may upon examination "earn or exceed" the best interests of the child in terms of weight. In HH, Lord Mance also captured the essence of this part that the best interests of any child should play when he said (at ):
"… 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.
- Whilst the best interests of a child might (and, following ZH (Tanzania), must) properly be afforded an importance or a weight as great as any other material consideration prior to examination of the individual circumstances of a case, it is in my view unhelpful and analytically wrong to say that those interests must continue to have more importance or weight than any other right or interest, throughout a process in which that decision-maker is exercising his very function of attaching importance or giving weight to all material considerations, including those which are "primary" and those that start, as a matter of policy, with a hallmark of particular importance. It would be a logically impossible task if there were more than one child, with differing "best interests". It would also prohibit, for example, a decision-maker giving more weight to one strand of a child's best interest than another, which a decision-maker must have the power to do. For example, in Collins (cited in paragraph 56 above), the decision-maker attributed – the court found, unexceptionably – "significant" weight to the adverse effect of a potential decision on the education of the relevant children, but only "moderate" weight to the issue of their health. That reflected the relative importance of those different interests of the child, in the view of the decision-maker.
- Two final points on the interests of children, in the field of planning. First, in making any assessment, even where a child's parents have breached planning controls (which would, of course, be a material consideration), in considering the child's interests, the decision-maker has to bear in mind that the child is not to blame for any breach (see Baroness Hale in ZH (Tanzania) at , and in HH at ).
- Second, as I have already emphasised, planning is quintessentially an area of social policy. As a consequence, for the reasons I set out below, a planning decision-maker has a wide margin of discretion in the exercise he performs, holding in balance the public interest and the rights of individuals. Furthermore, in some areas of social policy and control, although emphasising that the balancing exercise is always context-specific, the courts recognise that interference with article 8 rights may only outweigh the public interest where that interference is exceptional. Therefore, in the context of decisions to extradite which impact on article 8 rights, "the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition…" (Norris v The Government of the Unites States of America  UKSC 9 at  per Lord Phillips), a principle equally strong in the context of extradition even where the article 8 rights are those of children (HH at  per Lord Wilson). Immigration is another area in which it has been said that the decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of cases (Razgar v Secretary of State for the Home Department  UKHL 27;  2 AC 368 at  per Lord Bingham). I am not to be taken as advocating an "exceptionality" test – Lord Phillips in Norris makes clear why such a test is inappropriate here – and, of course, the context in which human rights are considered includes the area of administration in which any particular decision or measure is made – extradition and immigration are very different from planning. But it is not to be assumed in an area of social policy such as planning that article 8 rights (even of children, whose interests must be treated as primary) will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals (see, e.g., Lough v First Secretary of State  EWCA Civ 905;  1 WLR 2557 ("Lough") at  per Keene LJ). In practice, in my view, such cases are likely to be few.
- From these authorities, in respect of the approach of a planning decision-maker, the following propositions can be derived.
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
- I have already identified the tension between the long line of planning authorities which instil in us that planning merits are a matter exclusively for the expert decision-makers assigned the task under the statutory scheme – local planning authorities and inspectors on behalf of the Secretary of State – with the court only being concerned with the legality of their decision-making process; and the more recent, but now well-established, line of authorities which emphasise that, where human rights are in play, then it is for the court to make an objective assessment as to whether an adverse impact of a decision on those rights is proportionate. The conventional role of the court in planning cases (even if in the form of an application to quash under section 288 of the 1990 Act) is effectively one of considering procedural legal propriety, akin to judicial review; but, as Lord Bingham and Baroness Hale emphasised in SB and Miss Behavin' respectively (see paragraph 40 above), the role of the court in considering whether there has been a breach of human rights is different, the court being concerned, not with procedure, but the substantive issue of whether the individual's human rights have in fact been breached. On the basis of Miss Behavin', whether the decision-maker whose decision is challenged has conducted that proportionality exercise or not, is irrelevant: it is for the court to conduct that exercise, giving the weight to material factors that it considers appropriate (see paragraphs 40-44 above).
- What, then, is the correct approach of the court when one material factor in a planning decision is a potential infringement of article 8 rights which requires a proportionality exercise to be conducted?
- Before me, all parties to a greater or lesser degree submitted that, in a section 288 application where article 8 rights are in play, the planning jurisprudence to which I have referred should apply, and SB/Miss Behavin' should not – the court should not be concerned with merits, which Parliament has assigned to expert and experienced decision-makers and with which the courts are not properly equipped to deal. It was suggested that, if it were otherwise, given the large number of planning cases which might give rise to some potential infringement of article 8, the statutory planning scheme could not sensibly operate. If the courts began taking planning decisions on their merits, that would severely undermine the planning scheme as a whole, which has been put in place by Parliament. As such, as Lord Hoffmann emphasised in Alconbury (see paragraph 35 above), it would be "profoundly undemocratic".
- Furthermore, to the extent that SB and Miss Behavin' require the court to consider proportionality substantively, they have been described, extra-judicially, as "problematic and not obviously desirable" (J Beatson, S Grosz, T Hickman, R Singh and S Palmer, Human Rights: Judicial Protection in the United Kingdom (2008), which includes an illuminating and commendable exposition of the issues raised: see paragraphs 3-114 et seq, and paragraphs 6-50 et seq). The concerns expressed, for example about the court taking over decision-making from a primary decision-maker assigned the task by democratically elected Parliament (see, e.g., paragraph 3-123), are real and legitimate.
- However, SB and Miss Behavin' cannot be completely ignored; the approach required by those two House of Lords cases is, of course, binding on me. Furthermore, it is no complete answer to the tension between the approach advocated in those cases and the planning cases to which I have referred that the court in the former did not advocate "a shift to a merits review" (see, e.g., Daly at  per Lord Steyn, and SB at  per Lord Bingham); because a proportionality review clearly requires some consideration of merits.
- In my view, it is helpful to take a step back. Even under traditional judicial review grounds, merits given to material factors are not entirely out of bounds: they have to be examined at least to the extent of ascertaining whether the decision in question was one to which no reasonable decision-maker could have come (Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223 ("Wednesbury")) or, in other words, was a decision "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (Council of Civil Service Unions v Minister for the Civil Service  AC 374 at 410 per Lord Diplock). The weight accorded to particular factors by the decision-maker may be so manifestly excessive or manifestly inadequate such that the resulting decision falls within that category (see, e.g., R v Secretary of State for Trade and Industry ex parte BT3G Ltd  EuLR 325 at  per Silber J).
- As Lord Steyn indicated in Daly at -, the jurisprudential basis for the principle of proportionality is very different from that of common law irrationality. To begin with, the criteria are more precise and more sophisticated than merely broad logical outrageousness and irrationality. The question required to be answered by the court is whether the impairment of the relevant right or freedom is more than necessary to accomplish the public interest objective (Daly at ). That too requires consideration of merits, but, as Lord Steyn identifies, compared with Wednesbury, it demands a somewhat more intense review of both the weight afforded to relevant factors and the balance which the decision-maker has struck. The court's consideration of the article 8 rights, as with all human rights (but particularly those which involve family life) demands a review of particular intensity. If the interference with those rights would not only require children to leave a stable environment with access to schooling and health facilities, but also to camp with their families by the roadside, the level of intensity will of course be substantial (if authority were required for that self-evident proposition, see R (Smith) v South Norfolk Council  EWHC 2772 (Admin) at  per Ouseley J).
- However, although the basis for and intensity of review are different, there is considerable overlap in practical approach between a challenge on traditional grounds of judicial review and on the proportionality grounds. As Lord Slynn observed in Alconbury (at ), although there is a difference at a jurisprudential level between the principle and approach of the courts to assessing whether a decision is unlawful as being Wednesbury unreasonable and in breach of an individual's human rights as being a disproportionate infraction of them, the difference in practice is not as great as is sometimes supposed. Lord Steyn himself indicated in Daly (at ) that, whichever approach were adopted, the result would be the same in most cases.
- In particular, just as the Wednesbury doctrine gives a decision-maker a margin of discretion, the courts have consistently recognised that, in considering whether an adverse impact on the human rights of an individual is proportionate to other legitimate aims, there will be many cases where there is no single right answer. They have recognised that, when making a decision engaging human rights, primary decision-makers have a legitimate margin of discretion, or proper area of judgment: when a decision falls within that margin, then the courts will not interfere with it (see, e.g., R v Director of Public Prosecutions ex parte Kebeline  UKHL 43,  2 AC 326 at page 381 per Lord Hope, SB at  per Lord Hoffmann, Miss Behavin' at  per Lord Mance).
- Where the legislature or executive is engaged in making decisions and choices in the general field of economic or social policy, such as in this case, it is well-established that the state has a wide margin of discretion: because, in respect of what is in the public interest on social and economic grounds, it is in the best position to judge (see, e.g., Stec v United Kingdom (2006) 43 EHRR 1017 at paragraph 52, R (RJM) v Secretary of State for Work and Pensions  UKHL 63 at - per Lord Neuberger, R (S) v Secretary of State for Justice  EWHC 1810 (Admin) and Knowles & Knowles at -). That principle has been emphasised in cases concerning social control (in, e.g., Miss Behavin' itself at  per Lord Hoffmann), including planning (Lough at [43(g)-(h)] per Pill LJ). The justification for this wide margin of discretion in such areas was given by Lord Hoffmann in Miss Behavin' (at ):
"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."
- Of course, the human right involved in Miss Behavin' was the freedom of expression in the form of the right to sell pornographic material in the backstreets of Belfast which, important as that no doubt might have been to some, could only possibly have engaged article 10 "at a very low level" (Lord Hoffmann at ). The rights were not strong and, as I have already suggested, it was not entirely surprising that, although the Northern Ireland Court of Appeal had not considered this conclusion inevitable, each of their Lordships in that case clearly considered that the restriction of such activities on social policy grounds was an entirely proportionate interference with those rights. But the expression of principle with regard to the margin of discretion granted to a decision-maker when exercising a decision-making function in an area of social control is nevertheless good, and not undermined by the apparent weakness of the human rights relied upon in that case.
- As Lord Hoffmann indicated, that margin of discretion has with it the implication that, when considering a challenge on human rights grounds in an area of social control, the court will give substantial deference to the decision of the decision-maker, where he has careful weighed the various competing considerations and concluded that the action in question is proportionate and lawful. As Lord Neuberger said in Miss Behavin' (at ):
"… [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.
- Therefore, although the lawfulness of process is not determinative, process may well be important to the court's determination of whether the human rights of the person challenging the relevant decision have in fact been breached; because, if the decision-maker (say, an inspector appointed to deal with a section 78 planning appeal) gets the process right, then the courts will give deference to his decision, and afford him a wide margin of error in making it. As Lord Hoffmann put it in Miss Behavin' (see paragraph 79 above), in those circumstances, it will take "very unusual facts" for a finding to be made by a court that there had been a disproportionate restriction on Convention rights.
- Where a decision-maker is required to perform a decision-making exercise involving a number of public interest and private rights, one of which demands a proportionality balance to be performed, this overlap in approach is obviously helpful. In any event, problems deriving from the approach required by SB and Miss Behavin' are, in practice, likely to be few. In any proceedings, the court will be faced with a single question, namely whether the challenged decision disproportionately infringes an individual's human rights. In considering that question, it will give due deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant decision-making area. Such a decision-maker will be accorded a substantial margin of discretion. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity. If the decision-maker has clearly engaged with the article 8 rights in play, and considered them with care, it is unlikely that the court will interfere with his conclusion.
- Nevertheless, there may be cases where he has clearly not done so at all, or not done so properly. In those cases, I do not consider that, in every case where the primary decision maker has not properly engaged with the human rights issues, Miss Behavin' requires the court itself to grapple with the weight of those issues compared with public interest factors, irrespective of the area of administration involved and irrespective of the expertise and experience of the primary-decision-makers assigned to that task. In areas of high complexity where primary decision-making has been carefully assigned by Parliament, it seems to me that it would defy logic, and democratic principles, if the court was required to enter into an arena reserved to that decision-maker and in doing so to give appropriate weight to all sorts of social policy factors, as well as private rights and interests, no matter how ill-suited to the task the court might be, how expert the primary decision-maker might be and how relatively small the human rights issue is in the context of the decision-making process as a whole. In my view, it is arguable, even after Miss Behavin', that there are some cases in which it would be appropriate and lawful for the court to quash the primary decision-maker's decision and, effectively, require him to re-make that decision, this time properly taking into account the human rights in play as a material factor.
- However, that is an issue which does not arise in this case, because of the specific nature of section 288 applications and the limited matters in fact in issue in this claim.
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 heard submissions on the point of time at which the proportionality assessment should be made. That is not in issue in this application, because the Claimant does not seek to rely upon any evidence now that was not before the Inspector. I do not, therefore, give a concluded view. However, without prejudice to any other proceedings a claimant may bring if circumstances have changed or further evidence emerged since the date of an Inspector's decision, I am provisionally persuaded by Mr Philpott's submissions on this point, i.e. that the court should consider the assessment of proportionality as at the date of the Inspector's decision. Lord Bingham in SB at  said that the question of proportionality must be judged "by reference to the circumstances prevailing at the relevant time", which seems to me to be the time when the interference with the rights occurred. It is the Inspector's decision which requires the claimant and any children to leave the relevant site, and therefore the date of the alleged interference with the relevant article 8 rights. Furthermore, as I have emphasised above, the court is only concerned with the legality of the Inspector's decision – and can only quash that decision, by way of relief – and consideration of changes in circumstance since that decision seems to me to be logically inconsistent with the nature of a section 288 application. However, having expressed those initial views, I leave that issue to be determined in a claim in which is it is a live issue.
- In terms of the proper approach of the court when dealing with a section 288 application in which article 8 is engaged, so far as relevant to this claim, the following propositions can therefore be derived from the cases.
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
- Mr Willers submitted that the Inspector erred because, as required by paragraph 3.2 of PPG2 (see paragraph 7 above), in her decision she gave the harm caused to the Green Belt by the inappropriate development "substantial weight"; but gave the best interests of the children only "moderate weight". Article 8 coupled with article 3 of the UNCRC required her to give the best interests of the children at least as much weight as she gave to any other consideration. In failing to do so, she materially erred in law.
- Mr Willers addressed this submission in two ways.
- First, he submitted that paragraph 3.2 of PPG2 was itself unlawful, by requiring that "substantial weight" be given to harm to the Green Belt and indicating that harm caused by the development is "clearly outweighed" by other considerations.
- I cannot accept that submission. As I have indicated, human rights claims are necessarily context-specific, and this submission could only be good if it meant that any human rights claim would inevitably be dealt with improperly. That is clearly not the case. The policy is, of course, only a policy, capable of being overridden for good reason by the circumstances of a particular case – but in any event it expressly allows for harm to the Green Belt to be overridden by other material considerations, including article 8 rights. Whilst such development is only to be allowed "in very special circumstances", such circumstances are defined in paragraph 3.2 as those in which "… harm is clearly outweighed by other considerations", which must include infringements of article 8 rights. The policy cannot arguably be bad for requiring those other factors to outweigh harm "clearly". This is simply a mark of the fact that, in areas of social control, the relevant social policy will not easily or often be overridden (see paragraph 68 above).
- His second, main submission was that the inspector erred in the particular decision, because she gave the harm to the Green Belt "substantial" weight, and only "moderate" weight to the best interests of the children. However, I do not find that submission compelling, either.
- It is trite to say that the Inspector's decision letter has to be read as a whole. It comprises 56 paragraphs. Needless to say, there were many issues for her to cover, paragraph 11 of her decision identifying thirteen main issues, including the following: