Flintshire County Council v The Queen

The Court of Appeal allowed the council's appeal against a Deputy High Court Judge's quashing of a temporary planning permission for continued use of a site as a residential Gypsy caravan site. The court held that where children’s article 8 rights and the United Nations Convention on the Rights of the Child (article 3(1)) are engaged, their best interests are a primary consideration, but the assessment of what inquiries are reasonably required and the weight to be given to available information is a matter of planning judgment for the decision-maker. The officer’s report, read fairly and in context, provided sufficient information to justify a conclusion that refusing permission would likely force the families, including children, to live roadside and that a temporary permission was proportionate in the light of WOC 35/95 and WAGC 30/2007. The Deputy Judge’s view that the decision was Wednesbury unreasonable because of limited inquiries into the children’s circumstances was held to be incorrect.

Background and parties: The dispute concerned a decision by Flintshire County Council to grant temporary planning permission (five years) for the continued use of Dollar Park as a residential Gypsy caravan site occupied by Mr Hamilton and extended family groups. The owner of a nearby listed building, Mr Jayes, brought judicial review challenging the grant.

Procedural posture: The Deputy High Court Judge (C M G Ockelton, sitting as a Deputy High Court Judge) allowed the claim and quashed the council’s decision on the basis that the council had failed to ascertain and evaluate the best interests of the children on the site. The council obtained permission to appeal and the Court of Appeal heard the appeal.

Nature of the claim: Judicial review seeking quashing of the council’s grant of temporary planning permission on grounds including insufficient evidence as to the children’s circumstances and, subsidiarily, alleged error in treating the site as a whole rather than by plots.

Issues framed by the court: (i) Whether the decision-maker had to make further inquiries into the children’s circumstances before lawfully arriving at a planning judgment; (ii) whether the officer’s report and the committee’s decision were Wednesbury unreasonable given the limited information about the children; and (iii) whether the decision properly balanced article 8 rights (including the primacy of children’s best interests under the UNCRC) against the public interest in avoiding identified planning harm.

Reasoning and conclusion: The court reiterated that planning authorities are public authorities under the Human Rights Act 1998 and must treat children’s best interests as a primary consideration when article 8 is engaged, relying on the legal framework set out in ZH (Tanzania), the UNCRC and the court’s earlier decision in Stevens. However, the extent and intensity of any factual inquiry is context-specific and primarily for the planning decision-maker. Read fairly as a whole, the officer’s report (and the late observations) provided information that there were eleven children on the site, that some were of primary school age and attended the local school, and that there was no available alternative accommodation so refusal would likely force the families to roadside living with loss of access to education and healthcare. Those facts meant it was reasonable for the officer and committee to conclude that temporary permission would be proportionate under the guidance in Welsh circulars (WOC 35/95 and WAGC 30/2007). The Court of Appeal held that the Deputy Judge erred in concluding Wednesbury unreasonableness and allowed the appeal, dismissing the judicial review and leaving the temporary permission in place.

Appeal allowed. The Court of Appeal held that although children’s best interests are a primary consideration when article 8 is engaged, the intensity of inquiry into those interests is a matter for the planning decision-maker; the officer’s report and committee had sufficient information for a lawful planning judgment that a temporary permission was proportionate, so the Deputy Judge was wrong to quash the permission as Wednesbury unreasonable.

Appeal from C M G Ockelton (Vice President of the Immigration and Asylum Chamber of the Upper Tribunal) sitting as a Deputy High Court Judge: [2017] EWHC 874 (Admin) (judgment quashing the council’s decision). Permission to appeal granted by Sales LJ (19 June 2017). This Court of Appeal decision: [2018] EWCA Civ 1089 (appeal allowed).