First Secretary of State & Ors v Chichester District Council

Where planning enforcement interferes with a gypsy family’s existing home, the decision-maker must determine whether the interference is justified under Article 8(2). The assessment includes the seriousness of the planning harm, the availability of alternative accommodation, the family’s circumstances, and proportionality.

Article 8 does not require public authorities to provide an adequate number of gypsy sites or confer a right to a home. However, a local authority’s failure to pursue the national planning objective of meeting gypsies’ accommodation needs may be a material factor in the individual proportionality balance. The development plan retains statutory priority, but planning judgment permits a holistic assessment of the plan and other material considerations.

The applicants established mobile homes and caravans on rural land at West Ashling without planning permission. Chichester District Council refused permission and issued enforcement notices. The Secretary of State’s Inspector allowed the planning and enforcement appeals, finding limited countryside harm, an unmet need for gypsy sites, relevant personal circumstances, and a disproportionate interference with Article 8 rights.

Blackburne J, in the Administrative Court, quashed the Inspector’s decision under section 288 of the Town and Country Planning Act 1990. He held that the Inspector had erred on countryside policy, Mr Eames’s personal circumstances, and Article 8. The appeal raised whether those conclusions were correct, principally as to the Inspector’s Article 8 proportionality assessment.

1. Appeal allowed by a majority. Wall LJ and Pumfrey J held that the Inspector had made no error of law. The decision quashing his grant of permission was set aside and the Inspector’s decision was restored. Auld LJ dissented on the Article 8 issue and would have remitted it for reconsideration.

2. The Inspector was entitled to assess the proposed development under the development plan as a whole. He had recognised that it fell outside the exceptions in Structure Plan Policy C1 and caused some countryside harm. He could nevertheless take account of the more specific and up-to-date Local Plan Policy RE22, Circular 1/94 and other material considerations. Under sections 70(2) and 54A of the Town and Country Planning Act 1990, the plan has priority, but there is no compulsory two-stage method for weighing its policies and other material considerations. Any distinction between a technical and material breach of Policy C1 could not have affected the outcome.

3. The Inspector had adequately identified the matters favouring Mr Eames. They included the shortage of gypsy sites and his particular difficulty, as a single man, in obtaining a county council pitch. Those were distinct and intelligible material considerations.

4. The majority held that the Inspector correctly followed the Article 8 framework in Chapman v United Kingdom. The applicants’ caravans were their homes and enforcement was accepted to interfere with their qualified Article 8(1) rights. The Inspector was entitled under Article 8(2) to balance the limited and mitigable environmental harm against the likely loss of a home, the absence of realistic alternatives, and the applicants’ position as members of a vulnerable minority.

5. Chapman does not impose a general Article 8 duty to supply adequate gypsy sites. It did not, however, prevent the Inspector from treating the Council’s failure to pursue the national planning policy objective in Circular 1/94 as a relevant factor in the proportionality balance in this individual case. His conclusion that enforcement did not meet a pressing social need and would be disproportionate was open to him.

• Court of Appeal (Civil Division) — By a majority of Wall LJ and Pumfrey J, allowed the appeal and restored the Inspector’s decision: [2004] EWCA Civ 1248.
• Administrative Court — Blackburne J quashed the Inspector’s decision under section 288 of the Town and Country Planning Act 1990 and remitted the matter for reconsideration.