Jordan, R (on the application of) v Secretary of State for Communities and Local Government

In a planning decision engaging Convention rights, Article 8 need not be considered through a separate, rigid proportionality exercise. The decision-maker must assess the rights as part of the overall planning judgment and conduct a proper balance between individual interests, environmental protection and the wider public interest.

Where a development is inappropriate in the Green Belt, Article 8 may add weight to personal circumstances within the assessment of very special circumstances. An Inspector may nevertheless be required to consider whether a temporary permission could protect Convention rights, even if that possibility was not expressly advanced. A failure to consider it will not justify quashing the decision where it could not have affected the outcome.

The claimant sought judicial review under section 288 of the Town and Country Planning Act 1990 of an Inspector’s dismissal of his appeal against refusal of retrospective planning permission for a mobile home in the Green Belt.

Earlier enforcement appeals concerning the same development had failed, although the compliance period had been extended. The claimant argued that removing his home would engage Article 8 and Article 1 of the First Protocol, and that the Inspector should have considered a temporary planning permission. The central issues were whether Convention rights required separate consideration, whether the Inspector had to address an unadvanced temporary-permission option, and whether any omission could have affected the decision.

1. Convention rights and planning merits. Article 8 rights must be addressed as part of the overall planning judgment and material considerations under section 70(2) of the Town and Country Planning Act 1990. A separate, post-decision question asking whether Article 8 requires a different result is unnecessary.
2. The rigid two-stage proportionality approach described in [2001] EWCA Civ 1139 cannot simply be transposed into planning cases. A proper balancing exercise between the claimant’s rights, competing private interests and the public interest will ordinarily satisfy proportionality. Article 8 may strengthen arguments based on personal circumstances, but it does not displace Green Belt policy.
3. The development was inappropriate in the Green Belt. The claimant therefore had to establish very special circumstances clearly outweighing the harm to the Green Belt and any other harm. The Inspector was required to consider the effect on the claimant’s family life within that exercise.
4. Because Article 8 was engaged, the Inspector also had to consider whether a temporary permission could protect the claimant’s rights while causing less planning harm. The claimant’s failure expressly to raise that option did not make the issue immaterial. The earlier authority concerning an Inspector’s duty to investigate, Francis v Secretary of State [2008] EWCA Civ 890, concerned issues raised by the parties and did not establish a universal rule for matters material by operation of law.
5. The omission did not warrant quashing the decision. The dwelling had been unlawfully erected and retained despite an enforcement notice. The Green Belt objective was legitimate, the development harmed openness, character and highway safety, and the claimant’s case under Article 8 was comparatively weak. The same arguments, including temporary occupation, had been rejected in the earlier enforcement appeal and adequate time to leave had been provided. It was inconceivable that temporary permission would have been granted.

Applying the Simplex GE Holdings Limited v Secretary of State for the Environment [1988] 3 PLR 25 approach, the court was satisfied that the omission could have made no difference. The claim was dismissed, permission to appeal was refused, and costs of £922.68 were ordered against the claimant, payable within six months, subject to legal aid taxation.

First-instance judicial review under section 288 of the Town and Country Planning Act 1990. The claim challenging the Inspector’s decision was dismissed.