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

Where a planning decision engages a child’s rights under article 8, the child’s best interests must be identified and treated as a primary consideration. They are not, however, determinative. They may be outweighed by competing considerations after a fact-sensitive and proportionate planning balance.

The inquiry is one of substance rather than form. A decision-maker need not use a checklist, hear directly from affected children, or investigate further where professionally represented parties have provided no basis for doing so. Article 8 must form an integral part of the planning balance, not an afterthought.

The appellant was one of 78 Irish Traveller occupants, including 39 children, of an unauthorised residential caravan site near Blackpool. The local planning authority refused planning permission for the change of use and issued an enforcement notice. Following a recovered planning appeal and public inquiry, the Secretary of State dismissed the planning and enforcement appeals.

HHJ Pelling QC, sitting in the Administrative Court, dismissed the subsequent challenge under sections 288 and 289 of the Town and Country Planning Act 1990: [2012] EWHC 2760 (Admin). The appellant appealed, confining the substantive issue to temporary planning permission. The central question was whether the Secretary of State had properly treated the children’s best interests as a primary consideration when assessing the article 8 consequences of refusal.

1. The appeals were dismissed. Permission to appeal was granted in respect of the section 288 challenge, but the Secretary of State’s refusal of both permanent and temporary planning permission remained lawful.
2. Where a planning decision engages a child’s article 8 rights, article 3.1 of the United Nations Convention on the Rights of the Child requires the child’s best interests to be a primary consideration. The court approved the general approach in Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin). Best interests must be identified, kept at the forefront of the decision-maker’s mind, and assessed in the proportionality exercise. They are not determinative and may be outweighed by other material considerations in the particular planning case.
3. The assessment is one of substance, not formula. Specific checklists would be inappropriate in planning decisions. A decision-maker may usually regard a child’s interests as aligned with those of the parent or carer and may rely on the evidence placed before them, especially where the applicant is professionally represented. Direct evidence from children and independent inquiries are not normally required unless the material indicates a need for them.
4. Article 8 was considered as an integral part of the planning balance. Reading the inspector’s report and decision letter together, the Secretary of State identified that the children’s interests lay in remaining on the site because of the benefits of a settled home, continuity of education and access to health care. He gave those matters weight but was entitled to find that the substantial landscape and visual harm, and the considerable highway-safety harm, outweighed them.
5. The absence of express reference to children’s best interests did not invalidate the decision. Nothing concrete showed a material omission from the evidence or that an expressly framed assessment would realistically have produced a different planning balance. The inspector had also found no reasonable likelihood that an alternative site would become available at the end of a defined temporary period.

• Court of Appeal (Civil Division): permission was granted for the section 288 challenge, and the appeals were dismissed: [2013] EWCA Civ 1193.
• Administrative Court: HHJ Pelling QC dismissed the challenge under section 288 and the substantive appeal under section 289 of the Town and Country Planning Act 1990: [2012] EWHC 2760 (Admin).
• Secretary of State: following a recovered planning appeal, accepted the inspector’s recommendation to refuse planning permission and uphold the enforcement notice, subject to immaterial corrections and variations.