Flintshire County Council v Jayes, R. ( On the Application of)

A planning authority must treat the best interests of affected children as a primary consideration, but those interests are not determinative. The authority must identify them realistically, keep them at the forefront of its planning judgment and assess whether any adverse impact is proportionate.

The authority usually may assume that a parent or carer will present the relevant evidence. Further inquiries are unnecessary where the available information sufficiently establishes the children’s interests and additional information could only strengthen the case already accepted. The adequacy of the inquiry is context-specific and reviewable only on conventional public law grounds.

The Council granted a second five-year temporary planning permission for a residential Gypsy caravan site. It accepted that the development harmed the character of the area and the setting of a listed building. It nevertheless concluded that refusal would force the resident families, including eleven children, into roadside living because no alternative accommodation was available.

The High Court allowed the neighbouring landowner’s claim for judicial review and quashed the permission: [2017] EWHC 874 (Admin). It held that the Council had failed adequately to ascertain and evaluate the circumstances of the children.

The Council appealed. The central issue was whether the limited information about the children made the decision irrational or otherwise unlawful, particularly when their article 8 rights were considered through the best-interests principle in article 3(1) of the United Nations Convention on the Rights of the Child.

1. Appeal allowed. The Deputy High Court Judge had erred in holding that the officer’s recommendation and the Council’s decision were Wednesbury unreasonable. The Council had acted lawfully. The order below was quashed, the judicial review claim was dismissed and the temporary planning permission remained in force.

2. The extent of the inquiry required of an administrative decision-maker is context-specific. In planning matters, the authority decides what information is sufficient and how intensively to investigate it. A court may intervene only on conventional public law grounds, including irrationality.

3. The interests of affected children were a primary consideration, consistently with ZH (Tanzania) [2011] UKSC 4 and the principles in Stevens [2013] EWHC 792 (Admin), endorsed in Collins [2013] EWCA Civ 1193. Those interests had to be identified, kept at the forefront of the planning judgment and included in the proportionality assessment. They were not necessarily determinative.

4. The available information was limited but sufficient. The Council knew that eleven children lived on the site, that some were of primary-school age and that those children attended the local school. It was obvious that losing their settled base and being forced into roadside living would be seriously detrimental to their interests. The Council was entitled to balance that harm, together with the lack of alternative accommodation and the residents’ healthcare needs, against the identified planning harm.

5. Further inquiries were not legally required. A planning authority will usually be entitled to rely on a parent or carer to present evidence about a child’s interests. Here, no suggested inquiry could have diminished the weight of the children’s interests; additional information could only have strengthened the conclusion already reached.

6. The officer’s report had to be read fairly, as a whole and with common sense. It adequately enabled the committee to understand and determine the relevant issues. The committee’s adoption of the recommendation supported the inference that it also adopted the report’s reasoning.

7. The conditions for temporary permission under the applicable Welsh planning guidance were satisfied. A further five-year permission did not itself establish a precedent for permanent permission, although it might be a material consideration in a future planning decision.

Lindblom LJ agreed. He emphasised that the treatment of children’s interests must be realistic and responsive to the circumstances of the particular case.

1. Court of Appeal (Civil Division): Allowed the Council’s appeal, quashed the High Court order and dismissed the judicial review claim: [2018] EWCA Civ 1089.
2. High Court, Queen’s Bench Division (Planning Court): Allowed the claim for judicial review and quashed the Council’s grant of temporary planning permission: [2017] EWHC 874 (Admin).