Lough & Anor v First Secretary of State & Anor

Article 8 protects the home, including its environmental setting, but it does not confer an absolute right to retain existing residential amenities. A planning-related loss of amenity will engage Article 8 only where its effect is substantial in the circumstances.

In planning cases, proportionality ordinarily requires a fair balance between affected residents, the landowner and the community. The planning authority has a wide margin in that exercise. The two-stage approach in R (Samaroo) v Secretary of State for the Home Department [2001] UKHRR 1622 cannot be imposed without adaptation so as to require proof that development could occur elsewhere or by another design. An adequate substantive balance is sufficient even without express use of the word proportionality.

The appellants, residents near a proposed 20-storey mixed residential and commercial development in Bankside, sought to quash the Secretary of State’s grant of planning permission. An inspector had allowed the developer’s appeal against Southwark Council’s refusal. He found that the proposal conflicted with amenity policy because of daylight, sunlight and overshadowing effects, but concluded that its planning benefits justified an exception.

Collins J refused judicial review on 21 January 2004. The appellants contended that the decision infringed Article 8 and, alternatively, Article 1 of the First Protocol to the European Convention on Human Rights. They argued that the inspector had not applied proportionality and had failed to consider loss of view, television interference and diminution in property value. The central issue was whether Article 8 required a distinct and more structured proportionality inquiry in this planning decision.

1. Appeal dismissed. Pill LJ’s reasoning was agreed by Keene LJ and Scott Baker LJ. The inspector’s decision and Collins J’s refusal to quash it were upheld.

2. Article 8 protects respect for the home and has an environmental dimension. It does not, however, give an absolute entitlement to retain present amenities. A loss of light, privacy, view or other amenity will infringe Article 8(1) only where the impact is substantial in its context. The relevant inquiry requires a fair balance between the affected residents, other landowners and the community. In planning matters the decision-maker has a potentially wide margin of appreciation.

3. The inspector had undertaken the required balance. He considered the adverse daylight, sunlight and overshadowing effects, the other alleged effects, and the development’s benefits. The grant did not therefore breach Article 8(1). If Article 8(2) had required consideration, the same findings justified the interference, including by reference to the developer’s and the public’s interests.

4. The two-stage proportionality procedure described in R (Samaroo) v Secretary of State for the Home Department [2001] UKHRR 1622 was not wholly apt to competing private land-use interests. Its first stage did not require a planning authority to establish that development objectives could not be achieved elsewhere or by some other design. In this context, the question whether the effect on affected persons is excessive is the ordinary planning question whether a fair balance has been struck.

5. The Convention should normally inform the decision-maker’s consideration of material planning matters rather than appear as a separate footnote. Nevertheless, the absence of an express reference to proportionality did not invalidate a decision whose actual balancing exercise was comfortably within the permitted margin.

6. Diminution in value could evidence the extent of an amenity loss. It was not, by itself, a separate interference with privacy, amenity or the peaceful enjoyment of possessions under Article 1 of the First Protocol.

• Court of Appeal (Civil Division) Dismissed the appeal and upheld the refusal of judicial review: [2004] EWCA Civ 905 .
• High Court (Queen’s Bench Division) Collins J refused, on 21 January 2004, the application to quash the Secretary of State’s grant of planning permission. No citation was supplied.