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

The claimant challenged the Secretary of State's dismissal of his planning appeal for the stationing of 22 mobile homes, submitting that the inspector failed to give the best interests of the children on site appropriate or primary weight and that the decision was Wednesbury irrational or legally erroneous on proportionality grounds. The inspector had assessed development plan policies (including housing land supply), the substantial environmental harm, and social benefits; she conducted a household-by-household article 8 proportionality assessment and considered the public sector equality duty. The court held the inspector had properly made the best interests of children a primary consideration, had carried out intelligible and adequate reasoning on article 8 proportionality (including temporary permission), and had not acted irrationally or unlawfully. The application for relief was dismissed.

Background and parties:

• The claimant appealed a local planning authority refusal and subsequently challenged the Secretary of State's decision dismissing that appeal. The development comprised use of land for 22 mobile homes at Pineridge Park Homes, outside settlement, and related hard standings. Two enforcement notices requiring cessation and removal were in force.
• Proceedings were at first instance in the Administrative Court. The claimant sought to quash the Secretary of State's decision (judicial review / section 288 challenge) on a number of public law grounds.

Nature of the claim and relief sought:

• The claimant sought to challenge the inspector's decision on four grounds: (i) failure to accord the impact on children the required weight (best interests as a primary consideration); (ii) Wednesbury unreasonableness; (iii) error in the inspector's proportionality assessment; and (iv) misunderstanding authorities relied upon in relation to proportionality.

Issues framed by the court:

• Whether the inspector and Secretary of State erred in law in their treatment of the best interests of children under article 8 ECHR and relevant domestic duties (including the public sector equality duty);
• Whether the decision was irrational; and
• Whether the inspector carried out an adequate proportionality exercise under article 8.

Court's reasoning and conclusions:

• The court reviewed the applicable legal principles: standard judicial review principles for planning decisions, the requirement to treat a child’s best interests as a primary consideration in the article 8 proportionality assessment, and the margin of discretion afforded to planning inspectors in social policy decisions.
• The inspector had set out and applied relevant planning policy, concluded the Council could demonstrate a five year housing land supply, and found significant environmental harm and conflict with development plan and NPPF policies.
• On article 8 and children’s interests the inspector expressly acknowledged the need to have the best interests of children at the forefront, considered the PSED, and carried out detailed household-by-household proportionality assessments weighing personal circumstances (including children's welfare and availability of alternative accommodation) against the public interest in upholding planning controls. The inspector also addressed the case for temporary permission and explained why it would be unacceptable in the circumstances.
• The court found the reasoning to be intelligible and adequate, that the inspector had made the best interests of children a primary consideration in substance, and that her proportionality conclusions fell within the wide margin of discretion to be accorded to an inspector. There was no Wednesbury irrationality or material legal error.

Outcome:

• The application was dismissed and the claimant’s challenge failed.

The claim is dismissed. The court held that the inspector had lawfully and adequately considered the best interests of the children as a primary consideration within an article 8 proportionality assessment, had applied the public sector equality duty and planning policies correctly, and had not reached an irrational or legally defective conclusion. Given the inspector's detailed household-by-household proportionality exercises and the wide margin of discretion afforded in planning and social policy cases, the Secretary of State's decision stood.