Jayes, R (On the Application Of) v Hamilton

In planning decisions affecting children, their best interests must remain a primary consideration. The decision-maker must first identify the interests of the particular children affected, then weigh those interests with all other material considerations. No other consideration is inherently more important, although the children’s interests may be outweighed by a combination of other factors.

An officer’s report is unlawful where, read fairly and as a whole, it materially misleads the committee about the legal approach. A report which treats the mere existence of children as sufficient to justify permission, without identifying and evaluating their actual interests and the proportionality of the proposed decision, fails to apply the law.

The claimant sought judicial review of Flintshire County Council’s decision to grant temporary planning permission for the continued use of a site as a residential gypsy site. The permission accommodated nine families on seven pitches for up to five years.

The challenge alleged, among other matters, inadequate investigation of the children living on the site, errors concerning unmet accommodation need and the statutory duty to provide sites, inconsistency in granting repeat temporary permission, and reliance on comments made during the committee discussion.

The central issue was whether the committee had lawfully addressed the best interests of the children affected by the decision.

1. The claim succeeded on the first ground and the planning permission was quashed. The court held that the best interests of children affected by a planning decision must be treated as a primary consideration. The decision-maker must identify the interests of the particular children concerned and weigh them with all other relevant considerations. Those interests are not the sole or paramount consideration and may be outweighed by a combination of other factors.
2. In the planning context, relevant article 8 rights are material considerations. Where children’s rights are engaged, their best interests must remain at the forefront of the decision-maker’s mind, and the adverse impact of the proposed decision must be assessed for proportionality. The inquiry is substantive and fact-sensitive.
3. The officer’s report was materially misleading. It proceeded on the basis that children lived on the site, while their number, identity, ages and connection with the application were unclear. It treated the existence of children, and the possible loss of a settled base, as sufficient to justify permission without identifying their actual interests or evaluating the consequences of refusal. It also presented statutory and other duties as if they stood alone, rather than as important factors in the planning balance.
4. The factual investigation was inadequate and much of the information about the children appeared incorrect. That error alone did not necessarily invalidate the decision, because there was sufficient information to indicate that children lived on the site and some attended the local primary school. The legal error in the report and decision was decisive because the required evaluation had not been undertaken, making it impossible to say what the outcome would have been without the error.
5. The court’s additional observations were that a second temporary permission was not barred by planning policy. The relevant question on each occasion was whether there was reason to expect a material change of circumstances at the end of the specified period. Underoccupied private sites did not necessarily constitute accommodation available to gypsies generally, but an existing unmet need remained a material consideration. Comments made during committee discussion did not establish an unlawful irrelevant consideration where the decision accorded with the report.

First-instance judicial review. The planning permission granted by Flintshire County Council was quashed.