Langton & Anor v Secretary of State for Communities and Local Government

In a planning decision affecting Convention rights, Article 8 must inform the assessment of material considerations as an integral part of the planning merits. A rigid two-stage proportionality test, requiring consideration of whether the objective could be achieved on another site, is inappropriate. The decision-maker must conduct a fair balance between the applicants’ rights, the interests of others and the wider public interest. Where policy supports temporary permission because there is unmet need and no alternative provision, the decision-maker must address whether there is a reasonable expectation that sites will become available during the temporary period. Failure to decide that central issue, or to give adequate reasons for the conclusion, is a material error of law.

The claimants challenged under section 288 of the Town and Country Planning Act 1990 an Inspector’s dismissal of their appeal against refusal of temporary planning permission for the residential stationing of two caravans in the Dorset Area of Outstanding Natural Beauty. The Inspector accepted that they were travellers for planning purposes, that the proposal was sustainable, and that there was both general and personal need for accommodation. He nevertheless found substantial localised harm to the AONB and dismissed the appeal.

The claimants challenged the decision on Article 8 grounds and on the treatment of the policy governing temporary permissions. The central issue was whether the Inspector had adequately addressed the reasonable expectation that alternative sites would become available.

1. Article 8. The Inspector was required to consider the claimants’ Convention rights, but Article 8 did not have to be addressed as a separate or discrete stage outside the planning assessment. Following R (SB) v Governors of Denbigh School [2007] 1 AC 1000, Belfast City Council v Miss Behavin’ Ltd [2007] UKHL 19 and Lough v First Secretary of State [2004] EWCA Civ 905, the question was whether, looking at the decision as a whole, the rights had been addressed appropriately.
2. The two-stage approach described in Samaroo v Secretary of State for the Home Department [2001] EWCA Civ 1139 could not simply be transposed into the planning context. A proper balancing exercise, including the claimants’ family circumstances, the effect on their home, the protection of the AONB and the wider public interest, was sufficient to satisfy proportionality. Article 8 strengthened the arguments based on personal circumstances, but did not require permission to be granted where the overall balance justified refusal.
3. The Inspector’s conclusion that refusal was necessary and proportionate was properly reasoned. The first ground therefore failed.
4. The policy on temporary permissions required consideration of three questions: whether there was unmet need; whether alternative provision was available; and whether there was a reasonable expectation that new sites would become available during the temporary period. The Inspector dealt with the first two questions but made no finding on the third. He also failed to address the significance of any failure by the local planning authority to identify sites in accordance with national and regional policy.
5. The omission concerned an issue at the heart of the case. The Inspector’s later witness statement could not supply reasoning absent from the decision letter. The decision was therefore legally defective. The application was allowed, the decision letter was quashed, and the First Defendant was ordered to pay the claimants’ reasonable costs.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The Inspector’s decision dated 22 November 2007 was quashed.