McCarthy & Anor v First Secretary of State & Anor

In a planning decision engaging article 8, proportionality does not require rigid application of the two-stage procedure formulated for direct state interference. It requires a proper balance between the landowner’s interests, neighbouring interests and the wider community and environmental interest.

A decision-maker may treat likely unauthorised development as a material precedent effect where it rests on the site’s specific circumstances and identifiable environmental or highway harm. The weight of that effect, including the adequacy of enforcement powers, is for the decision-maker.

The appellants, Irish travellers, sought planning permission for two caravans and a shower block at Smithy Fen, Cambridgeshire. Following an earlier remittal, the Secretary of State refused permission, upheld an enforcement notice and allowed 12 months for departure.

The Administrative Court dismissed their statutory challenge under section 288 of the Town and Country Planning Act 1990 and refused permission to appeal. The appellants renewed their application to the Court of Appeal. They contended that an anticipated precedent effect from further unauthorised development was irrelevant or inadequately evidenced, and that article 8 required the rigid two-stage proportionality procedure in Samaroo.

Disposition

Sir Paul Kennedy, with whom Buxton LJ agreed, refused the renewed application. None of the proposed grounds had a realistic prospect of success.

1. The Court rejected the contention that article 8 required a rigid application of the two-stage proportionality procedure in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139. In planning cases, proportionality is met by a proper balancing exercise. That balance includes the landowner’s interest in using land, the interests of neighbouring owners and occupiers, and the wider community and environmental interest.

   Lough v First Secretary of State [2004] 1 WLR 2557 was not confined to disputes between competing private interests. Its reasoning was applicable more broadly to the planning context. It did not require a decision-maker first to prove that development objectives could be achieved by another means or at another site.

2. The Secretary of State was entitled to take account of the likely precedent effect of permission. A decision-maker need not disregard a likely encouragement of unauthorised development where it would have identifiable harmful consequences for the environment or highway safety. The weight given to that prospect, including the effectiveness of enforcement powers, was a matter for the decision-maker.

   Here, the precedent concern was not a general assumption. It was based on the particular circumstances at Smithy Fen and therefore provided a proper basis for the finding.

3. The refusal of temporary three-year permission was also sustainable. The Secretary of State had considered the alternative request and was entitled to conclude that the serious harm to the countryside and uncertainty about alternative sites did not justify a temporary permission.

Order: application refused.

• Court of Appeal (Civil Division): Refused the appellants’ renewed application following the refusal of permission to appeal.
• Administrative Court: On 20 December 2006, HHJ Gilbart QC dismissed the section 288 challenge to the Secretary of State’s decision and refused permission to appeal.
• Secretary of State: On 7 December 2005, refused planning permission, upheld the enforcement notice and allowed 12 months for the appellants to leave the land.
• High Court: On 15 December 2004, quashed an earlier inspector’s decision favourable to the appellants and remitted the matter for redetermination.