Rooney v Secretary of State for Communitites and Local Government

Where a planning appeal engages Article 8, proportionality requires a balance between interference with private and family life and the wider public interest. In the planning context, that interest includes the degree of planning harm and conflict with planning policy. An inspector deciding a section 78 appeal conducts the merits assessment. Where that appeal provides a full merits determination, Convention compliance does not require a second merits review by the High Court. Review under section 288 remains a review of lawfulness, including legal error, fairness and impartiality. Similar personal consequences do not require identical outcomes where planning harm is materially different.

The appellant sought permission to appeal against the dismissal by HHJ Kay QC, sitting as a Deputy High Court judge, of an application under section 288 of the Town and Country Planning Act 1990. The application challenged an inspector’s dismissal of a section 78 appeal against refusal of planning permission for a gypsy caravan site at Willow Farm.

The inspector had recently allowed a section 78 appeal concerning a different site at Red Cottage. The appellant argued that similar personal consequences of refusal, including possible roadside camping and interference with Article 8 rights, required the same proportionality conclusion. A further issue was whether the High Court had to conduct its own merits review of proportionality by reference to Pinnock principles.

1. Permission granted; appeal dismissed. The inspector had not erred in law in distinguishing the Willow Farm and Red Cottage appeals. Although the personal consequences of refusal were broadly similar, the inspector identified materially different planning harm. The Willow Farm proposal caused very severe harm to the Green Belt and to the character and appearance of the area, whereas the Red Cottage proposal caused a considerable, but lesser, level of harm.
2. Article 8(2) requires a balancing exercise. The interference with private and family life must be weighed against the wider public interest. In a planning case, that interest necessarily includes the degree of planning harm and conflict with planning policy. The greater the public harm, the less likely the interference will be disproportionate.
3. The High Court correctly adopted the conventional approach under sections 288 and 289 of the Town and Country Planning Act 1990. It reviewed the lawfulness of the inspector’s decision rather than deciding proportionality afresh. Under section 78, the inspector conducts a full merits appeal on all relevant issues, including proportionality where Article 8 is engaged.
4. Manchester City Council v Pinnock [2010] UKSC 45 did not require a second merits review because it concerned a different statutory scheme. The planning scheme combines a merits appeal before the inspector with judicial review of legality in the High Court.
5. The scheme was Convention-compliant. Bryan v United Kingdom [1995] 21 EHRR 342 and R (Alconbury Developments Ltd & Others) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 supported the conclusion that judicial review of a planning decision can provide sufficient independent control. Article 8 does not require two merits reviews. The High Court could still examine unfairness, partiality or other legal error.

• Court of Appeal (Civil Division) — Permission to appeal granted and appeal dismissed.
• Administrative Court, Queen’s Bench Division — HHJ Kay QC, sitting as a Deputy High Court judge, dismissed the application under section 288 of the Town and Country Planning Act 1990 on 26 October 2010.
• Planning inspector — The inspector dismissed the section 78 appeal concerning Willow Farm. An earlier appeal concerning Red Cottage had been allowed.