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

Where a planning decision may substantially interfere with a person’s home or family life, the decision-maker must undertake an appropriate Article 8 proportionality assessment. The assessment must identify all relevant circumstances, identify the best interests of any affected child as a primary consideration, and strike a fair balance between individual and community interests.

In a section 78 planning hearing, the inspector’s inquisitorial duties require active identification of the principal issues and any evidential gaps. A refusal decision may be quashed where the inspector has failed to investigate material family, medical, welfare or alternative-accommodation issues, or has given inadequate reasons. Personal and time-limited conditions must also be considered where the circumstances may change.

The applicant challenged under section 288 of the Town and Country Planning Act 1990 an inspector’s dismissal of his section 78 appeal. The appeal concerned the refusal, following non-determination by South Gloucestershire District Council, of permission to station and occupy a mobile home in the green belt.

The applicant relied on serious psychiatric and physical conditions, his relationship with his son, his wife’s caring responsibilities for her disabled sister, and the potential interference with the family’s homes and family life under Article 8. He argued that the inspector had failed to assess the evidence, the Article 8 rights of affected family members, and alternatives including personal or temporary permission.

The central issues were whether the inspector had complied with the Hearings Rules, the Human Rights Act 1998 and relevant planning policy.

1. The application was allowed. The inspector’s decision was quashed and the Secretary of State was directed to reconsider the appeal. The first respondent was ordered to pay the applicant’s costs.
2. The inspector had wrongly confined the psychiatric evidence to the applicant’s fear of enclosed spaces and desire for an outdoor lifestyle. She failed to address the combined effect of his personality disorder, illiteracy, low IQ, physical disabilities, depression, suicidal ideation, chronic pain, dependence on his wife and apparent inability to relocate. The resulting proportionality assessment was incomplete and inadequate.
3. Unlawful occupation, previous enforcement action, non-compliance and failure to search for another site did not prevent Article 8 from being engaged. Those matters could be weighed against the applicant, but on these facts they did not materially answer the proportionality question.
4. The inspector had to consider the Article 8 rights of all materially affected family members. The applicant could rely on the rights of his son, wife and sister-in-law. The son’s best interests had to be identified and treated as a primary consideration, with appropriate attention to his own views and to possible alternative accommodation.
5. The required proportionality exercise involved identifying all relevant individual and community interests, identifying the child’s best interests, and then carrying out a structured balancing exercise. The inspector’s treatment of Article 8 as essentially a repetition of the very-special-circumstances planning assessment was legally erroneous.
6. The hearing procedure was inquisitorial. The inspector had to identify the main issues, investigate material evidential gaps, obtain further information where necessary, and consider whether cross-examination or an inquiry was required. The decision also had to give adequate reasons addressing the principal issues and salient evidence.
7. After rejecting full permission, the inspector should have considered amended permission, a personal condition, a time-limited condition and the appropriate duration of any time limit. It was an error to focus only on whether the applicant’s psychiatric condition might improve and to disregard other circumstances likely to change, including family support, the child’s age and alternative accommodation.

This was a first-instance application under section 288 of the Town and Country Planning Act 1990. The inspector’s section 78 appeal decision dated 19 November 2010 was quashed and the appeal was remitted to the Secretary of State for reconsideration.