Stevens v Secretary of State for Housing and Communities and Local Government

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision refusing retrospective planning permission for a family caravan site in the Green Belt. The two grounds were (1) that the inspector relied on an unsupported factual finding about visual prominence and (2) that the inspector failed properly to treat the best interests of the claimant’s children as a primary consideration under Article 8 ECHR read with Article 3(1) of the UNCRC as explained in ZH (Tanzania). The judge held that (i) there was evidential basis for the inspector’s finding about visual prominence and (ii) the inspector had in substance identified and given proper consideration to the children’s interests, kept those interests at the forefront of her mind and carried out the balancing exercise required by section 70 of the 1990 Act. The application was dismissed because the inspector’s proportionality conclusion fell within her wide margin of discretion.

This is a first instance judicial review application under section 288 of the Town and Country Planning Act 1990 seeking to quash an inspector’s decision dismissing an appeal against refusal of retrospective planning permission for a Gypsy family caravan site on Green Belt land (the Site).

Background facts and parties:

• The claimant, Jane Stevens, and her extended family (including children) had lived on the Site since 2009 and applied for temporary retrospective planning permission. The Site lies in the Green Belt adjacent to the Ripley Conservation Area and the application was refused by the council. An enforcement notice was issued and the claimant appealed; the Secretary of State appointed an inspector who dismissed the appeals on 11 January 2011 (the enforcement notice compliance period was varied).
• The claimant sought judicial review under section 288 challenging only the inspector’s refusal of planning permission, not the enforcement notice decision.

Relief sought:

• Quashing of the inspector’s decision on two grounds: (1) an alleged unsupported factual finding about prominence/visual impact and (2) alleged failure properly to treat the best interests of the children as a primary consideration under Article 8 ECHR and Article 3(1) UNCRC (relying on ZH (Tanzania)).

Issues framed by the court:

• Whether the inspector’s factual finding as to prominence and visual impact had an evidential basis;
• Whether the inspector lawfully took into account Article 8 rights and, where children’s interests were engaged, treated their best interests as a primary consideration in accordance with the UNCRC and the authorities (and whether her proportionality conclusion was one the court could displace).

Reasoning and conclusion:

• On Ground 1 the court found contemporaneous evidence (representations from Ripley Parish Council, local residents and the claimant’s own consultant) and the inspector’s site visit provided an adequate evidential basis for the finding that the development was visible and could be prominent from properties in the Conservation Area; that finding involved planning judgment as to harm and prominence and was not irrational.
• On Ground 2 the court set out the legal framework: planning decision-makers must take Article 8 into account as a material consideration (section 70), children’s interests must be a primary consideration under Article 3(1) UNCRC as interpreted in ZH (Tanzania), but the best interests are not determinative; their weight must be considered in context. The court emphasised the overlap between proportionality review and conventional judicial review, the inspector’s wide margin of discretion in social policy matters and the deference due to an expert inspector who has engaged with the issues.
• The inspector had identified the children’s needs (stable home, schooling, health), recorded and considered the evidence (including the headteacher’s letter), found no alternative lawful pitches and expressly attributed weight to those factors (describing them as attracting moderate weight). Read as a whole, the decision showed the inspector had the children’s interests at the forefront of her mind and had balanced them against substantial weight given to Green Belt harm as required by PPG2. The inspector’s conclusion that refusal would not be a disproportionate interference with Article 8 rights fell within her margin of discretion and was objectively proportionate. The judicial review application was dismissed.

The claim is dismissed. The court found (i) there was evidential support for the inspector’s factual finding about the development’s visual prominence and (ii) the inspector did identify and take proper account of the children’s best interests within the article 8/UNCRC framework, carried out the required balancing under section 70 of the 1990 Act and reached a proportionate conclusion within her margin of discretion.

The planning application was refused by Guildford Borough Council on 19 February 2010 and an enforcement notice issued on 22 March 2010. The claimant appealed; the Secretary of State appointed inspector Wendy McKay who held a hearing and site visit on 21 September 2010 and issued a decision on 11 January 2011 dismissing the appeal (the enforcement notice was varied to extend the compliance period). The claimant then applied to the High Court under section 288 of the Town and Country Planning Act 1990 to quash the inspector’s decision; that application was refused by Hickinbottom J on 10 April 2013 (this judgment).