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

Where a planning decision engages a child’s article 8 rights, the child’s best interests must be identified, treated as a primary consideration, and kept at the forefront of the decision-maker’s mind. They are not, however, determinative. No consideration may be treated as inherently more important, but, after the case-specific assessment, other considerations may properly carry greater relative weight.

In a planning challenge under the Town and Country Planning Act 1990, the court does not conduct a full merits review. It determines proportionality with appropriate scrutiny while affording substantial deference and a wide margin of discretion to the expert planning decision-maker, particularly where that decision-maker has carefully addressed the relevant article 8 interests.

The claimant, a Gypsy woman, and her extended family lived in caravans on agricultural land in the Green Belt without planning permission. The local authority refused retrospective temporary permission and issued an enforcement notice. On a consolidated appeal, the Secretary of State’s inspector dismissed the planning appeal but extended the period for compliance with the enforcement notice.

The claimant brought a statutory challenge under section 288 of the Town and Country Planning Act 1990. She alleged, first, that the inspector had made an unsupported finding about the site’s visual prominence. Secondly, she contended that the inspector had failed to treat the children’s best interests as a primary consideration when assessing the proportionality of the interference with their article 8 rights.

1. Application dismissed. There was evidence that the development could be seen from properties in the conservation area, including first-floor windows. The extent of its prominence and visual harm were matters of planning judgment for the inspector. Ground 1 disclosed no arguable error.
2. Article 8 rights engaged by a planning decision are material considerations under section 70 of the Town and Country Planning Act 1990. Where children are affected, their rights must be assessed through article 3(1) of the United Nations Convention on the Rights of the Child, as explained in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. The decision-maker must identify the children’s best interests and assess whether the proposed interference is proportionate.
3. A primary consideration is not a paramount or determinative consideration. It means that no factor is inherently more important than the children’s interests before the individual circumstances are assessed. In a fact-sensitive planning balance, other factors may properly outweigh those interests after examination. The issue is one of substance, not whether the decision letter uses prescribed language or places matters in a formal sequence.
4. The inspector had identified the family’s need for a settled base, the children’s schooling and medical needs, the shortage of lawful Gypsy sites, and the likely consequence of roadside camping. Her description of those matters as carrying moderate weight was an assessment of their relative weight after considering all material factors. It did not treat the children’s interests as inherently less important than Green Belt harm. Her extension of the enforcement compliance period further showed that those interests remained in mind.
5. On a section 288 challenge, the court considers proportionality substantively, but not by undertaking a full planning merits review. A planning inspector has expertise, acts in a quasi-judicial capacity, and operates in an area of social policy. Those features justify considerable deference and a wide margin of discretion. The inspector’s conclusion that the interference was proportionate was lawful and, objectively, clearly proportionate.
6. The Green Belt policy in paragraph 3.2 of Planning Policy Guidance Note PPG2 “Green Belts” was not unlawful. It permitted other material considerations, including article 8 rights, to clearly outweigh Green Belt harm in very special circumstances.

High Court (Administrative Court): The claimant sought to quash, under section 288 of the Town and Country Planning Act 1990, the inspector’s dismissal of her planning appeal. The application was dismissed.

Planning appeal: The Secretary of State’s inspector dismissed the appeals against the refusal of retrospective planning permission and the enforcement notice, but varied the notice to allow one year for compliance.

Local planning authority: Guildford Borough Council refused retrospective planning permission and issued the enforcement notice.