Gosbee & Anor, R (on the application of) v First Secretary of State & Anor

In a planning challenge involving interference with the claimants’ home, the court held that an otherwise reasonable planning condition does not become unreasonable merely because the landowner later voluntarily sells the land benefiting from the permission. In an Article 8 challenge, the inspector must identify the legitimate planning objective, consider whether the measure is the least intrusive means of achieving it, and balance the public interest against the individual impact. The reviewing court must apply anxious scrutiny to the inspector’s reasoning, but must respect the planning decision-maker’s superior position on fact-sensitive matters and must not substitute its own proportionality assessment. An inspector is generally required to determine the case advanced by the parties, not formulate unargued alternative conditions or conduct further investigations on their behalf.

The claimants challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s decision dated 9 August 2002. The inspector had dismissed their paper appeal against refusal of permission under sections 73A(2)(c) and 78 to remove a condition attached to a 1993 permission.

The condition required demolition of the claimants’ existing bungalow after occupation of a replacement dwelling built on adjoining land. The claimants had sold that land, and an enforcement notice under section 174 required demolition. They argued that the condition was unnecessary or no longer reasonable, that relevant planning matters had been ignored, and that demolition would disproportionately interfere with their Article 8 rights.

1. The application was dismissed. Permission to amend the grounds was granted, but each ground failed.
2. The inspector was entitled to conclude that the demolition condition was necessary and reasonable. The permission represented a one-for-one replacement dwelling in the countryside. Retaining both the bungalow and the new dwelling would create an additional dwelling and conflict with the planning policies protecting the rural character of the area. It was not immaterial that a barn had formerly had permission for residential conversion: conversion of the barn was materially different from retaining the bungalow and would have had a different impact. The inspector’s conclusion was a matter of planning judgment.
3. A planning condition must be reasonably enforceable to be reasonable. The condition remained enforceable and reasonable after the claimants’ voluntary sale because the contract gave the purchasers sufficient control to secure compliance. The claimants were not innocent third parties: they had benefited from the permission and had accepted contractual obligations concerning the condition.
4. The inspector was not required to give material weight to, or expressly mention, the suggested fall-back position or the value of retaining the dwelling. Neither matter had been advanced with specific evidence, and the planning policies themselves placed greater weight on environmental protection. The potential precedent effect of permitting the bungalow to remain was obvious from the nature of the development, so specific evidence of likely abuse was unnecessary.
5. The demolition requirement interfered with Article 8(1), but the inspector was entitled to find the interference justified under Article 8(2). The court adopted the two-stage proportionality approach in R(Samaroo) v Secretary of State for the Home Department [2001] UKHRR 1150: whether the objective could be achieved by less intrusive means, and, if not, whether the impact on the affected persons was excessive. The inspector had considered the claimants’ loss of home, the serious planning objections and the general environmental interest.
6. Judicial review of the proportionality assessment required careful scrutiny of the material facts, but not a merits review. The court had to respect the inspector’s position as the specialist decision-maker and could intervene only where the balancing exercise had not genuinely been undertaken or was legally flawed. The inspector was not obliged to devise and assess an unargued deferred-demolition condition, or to investigate further personal circumstances. The appeal was therefore dismissed, with costs to the Secretary of State subject to detailed assessment if not agreed.

First-instance application under section 288 of the Town and Country Planning Act 1990. The judgment does not state any subsequent appellate decision.