Sabi v Secretary Of State For Transport, Local Government & Regions & Anor

In planning decisions engaging Convention rights, the decision-maker must consider the relevant Convention article and balance the competing interests. The reviewing court need not determine the planning merits afresh. It must scrutinise whether the decision-maker asked the right questions, addressed the relevant considerations and reached a lawful conclusion. An inspector may give greater weight to statutory conservation duties and adopted planning policies than to private security concerns, provided the balancing exercise is properly undertaken. The Human Rights Act does not prevent that evaluative approach.

The claimant sought permission to appeal against the refusal by Mr Justice Forbes on 18 June 2002 to quash the Secretary of State’s dismissal of his planning appeal. The appeal concerned steel gates at a residential property within the Hampstead Garden Suburb Conservation Area. The inspector accepted that crime prevention and the claimant’s family security were material considerations, but concluded that the gates harmed the conservation area and that their retention was not justified.

The claimant argued that the decision unlawfully interfered with his rights under Articles 8 and 14 of the Convention and that the judge had adopted excessive judicial deference. The central issue was whether the inspector had lawfully balanced the Convention rights and competing planning considerations.

1. Permission refused. The Court of Appeal held that the decision of Mr Justice Forbes could not realistically be reversed.
2. The planning decision had to be considered in the light of the Human Rights Act and, in particular, Article 8 of the Convention. The inspector had recognised that refusal would interfere with the claimant’s home and private and family life and had addressed the need to balance that interference against the public interest.
3. The inspector was entitled to give greater weight to the statutory conservation duty under the Planning (Listed Buildings and Conservation Areas) Act 1990, the policies of the local planning authority and the importance of preserving the openness and character of the conservation area. Crime prevention and the family’s security remained relevant considerations, but they did not compel permission.
4. Human-rights review did not require the judge to perform the same planning function as the inspector or to substitute his own view of the merits. The court’s task was to scrutinise the decision and determine whether the inspector had asked the right questions and reached a lawful conclusion. The inspector had properly considered the crime-prevention issue in the context of Article 8 and had given adequate reasons.
5. The Article 14 argument failed because the inspector was entitled to distinguish the part of the road concerned from another section where gates had been permitted, owing to differences in character and openness.

The application for permission to appeal was dismissed.

• Court of Appeal (Civil Division): Permission to appeal refused. The court upheld the refusal by Mr Justice Forbes to quash the Secretary of State’s planning decision.
• High Court, Administrative Court: Mr Justice Forbes refused the claimant’s application for judicial review on 18 June 2002.
• Secretary of State: The inspector’s decision dated 11 October 2001 dismissed the claimant’s planning appeal against the London Borough of Barnet’s refusal of planning permission.