Clarke, R (on the application of) v Secretary of State for Transport, Local Government & The Regions

Where a Gypsy applicant’s opposition to conventional housing may be rooted in cultural identity, a planning inspector must make a clear factual assessment of that issue before undertaking the proportionality balance required by Article 8(2). The availability and rejection of bricks-and-mortar accommodation cannot alone determine the application. It must be evaluated with the applicant’s personal and cultural circumstances and the planning objections.

This approach creates neither a right to be provided with a home or caravan site nor an automatic entitlement to planning permission. A decision must, however, give sufficient reasons to show whether the refusal of conventional housing affected the balance. Where it does not, quashing and remittal are justified.

A Gypsy family sought planning permission for the continued residential use of land for their caravan. The planning inspector dismissed the appeal. He found serious visual and land-use objections, but also considered the family’s lack of access to lawful pitches, the children’s need for stability, and an offer of conventional housing which the family had declined.

Burton J quashed the inspector’s decision and remitted it because the reasons did not make clear whether the rejected housing offer had improperly affected the assessment of the family’s circumstances under Articles 8 and 14. The appellant contended that the judge had wrongly treated conventional housing as irrelevant. The central issue was whether the judge’s approach and order for remittal were correct.

1. Appeal dismissed unanimously. Buxton LJ, with whom Laws LJ and Douglas Brown J agreed, held that Burton J was entitled to quash the inspector’s decision and remit the matter for fresh determination.

2. The judge had not imposed an absolute rule that an offer of conventional housing becomes irrelevant whenever a Gypsy applicant rejects it. His approach was that, where the applicant establishes a culturally rooted and sufficiently intense aversion to conventional housing, the inspector cannot treat its availability and refusal as dispositive. The inspector must instead examine the personal circumstances in that cultural context and weigh them against the planning objections.

3. The approach accorded with Chapman v United Kingdom 10 HBRC at 48. Article 8 does not confer a right to be provided with a home or impose a general duty to provide adequate Gypsy sites. Nor does cultural opposition to conventional housing require planning permission to be granted. The qualified right requires a fact-sensitive balance between the interference with private, family and home life and the legitimate planning objectives under Article 8.2.

4. The inspector’s reasons did not clearly resolve whether the family’s refusal of conventional accommodation diminished the weight given to their personal circumstances, or whether the planning objections would have produced the same result regardless. Where a Convention right is potentially engaged, the factual basis on which it is asserted requires more intense scrutiny before the Article 8.2 balance can be undertaken. The inadequate reasons therefore justified quashing and remittal to the inspector.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 819, unanimously dismissed the appeal and upheld the quashing and remittal of the inspector’s decision.
• Administrative Court (Burton J): On 9 October 2001, quashed the planning inspector’s decision for inadequate reasoning and remitted the matter to the inspector.