Hilda Rafferty & Bessie Jones v Secretary of State for Communities and Local Government & Ors

Article 8(1) may be engaged where refusal of planning permission prevents gypsies from stationing their caravans on land they own, even though they are not yet living there. A caravan may be the occupants’ home, and home and private and family life are closely linked. The issue is not confined to a positive duty to provide a home. The resulting interference must be assessed under Article 8(2), including the applicants’ gypsy identity, need for a stable base, and the planning harm identified. An error in treating Article 8(1) as inapplicable will not require quashing where the decision-maker has considered all relevant factors and the result would inevitably have been the same.

The appellants, Romany gypsies, owned land in North Somerset and sought planning permission to use it as a residential caravan site. They were living in caravans on a lay-by elsewhere when the planning inspector dismissed their appeals, giving weight to harm to the character of an Area of Outstanding Natural Beauty, travel patterns and highway safety, together with their personal and family circumstances.

Mr Justice Pitchford dismissed their application under section 288 of the Town and Country Planning Act 1990. The appeal concerned whether refusal of permission engaged Article 8(1) of the European Convention on Human Rights and, if so, whether the inspector had carried out a lawful and proportionate Article 8(2) assessment.

1. Appeal dismissed. Article 8(1) was engaged. The appellants’ caravans were their homes and the place from which they conducted their private and family lives. Refusing permission to station them on land owned by the appellants could deny them a stable base just as requiring them to move from an established site could. The fact that the caravans were not already on the land did not prevent Article 8(1) from applying.
2. The case did not concern a positive obligation under Article 8(1) to provide a home. The rights to respect for home and private and family life were conceptually linked. The special considerations arising from the gypsy way of life fell to be considered principally in the Article 8(2) balancing exercise.
3. That exercise required the appellants’ personal and family interests, including their need for stability and access to education and health services, to be weighed against legitimate planning aims. These included protection of the Area of Outstanding Natural Beauty, and the effects on travel patterns and highway safety. Proportionality is inherent in planning decision-making.
4. The inspector’s approach was legally defective in treating Article 8(1) as inapplicable, but the error did not affect the outcome. He had considered the appellants’ nomadic lifestyle, agricultural work, the children’s education, health difficulties, need for stability and the absence of realistic alternative accommodation. He had also weighed those matters against the relevant planning harm.
5. Applying Simplex GE Holdings Limited v The Secretary of State for the Environment, the court held that the decision could be upheld because the inspector had already undertaken the substance of the required balancing exercise and the result would inevitably have been the same.

• Court of Appeal (Civil Division) — The appeal from the Administrative Court was dismissed. The court held that Article 8(1) was engaged but upheld the planning decision because the inspector’s error made no difference to the result.
• High Court of Justice, Administrative Court — Mr Justice Pitchford dismissed the appellants’ application under section 288 of the Town and Country Planning Act 1990 against the inspector’s decision.
• Planning inspector — Appeals under section 78 of the Town and Country Planning Act 1990 against refusal of planning permission were dismissed.