Collins v Secretary of State for Communities and Local Government and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Floyd,Sir David Keene |
| Judgment Date | 09 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1193 |
| Docket Number | Case No: C1/2012/2806 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 October 2013 |
[2013] EWCA Civ 1193
Lord Justice Richards
Lord Justice Floyd
and
Sir David Keene
Case No: C1/2012/2806
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
His Honour Judge Pelling QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Cottle (instructed by Lester Morrill Solicitors) for the Appellant
Rupert Warren QC (instructed by The Treasury Solicitor) for the Respondent
Fylde Borough Council did not appear on the appeal
Approved Judgment
Hearing date: 18 July 2013
The appellant is one of a group of 78 travellers (including 39 children) who since November 2009 have been living in caravans on a site of about 2.4 hectares to the south east of the village of Hardhorn, near Blackpool. Fylde Borough Council, the local planning authority, issued an enforcement notice alleging that the use of the land had been changed without planning permission from equestrian and agricultural use to use as a residential caravan site. An application for planning permission for that change of use was refused. Appeals were then brought both against the enforcement notice and against the refusal of planning permission. The appeals were recovered for determination by the Secretary of State, who appointed an inspector to hold a public local inquiry. The inspector's report recommended that the appeals be dismissed and that the enforcement notice be upheld, subject to immaterial corrections and variations. In a decision letter dated 18 August 2011 the Secretary of State agreed with the inspector's recommendations.
The next phase of the case was a challenge under section 288 of the Town and Country Planning Act 1990 against the refusal of planning permission, and an appeal under section 289 of the Act against the decision to uphold the enforcement notice. In a characteristically clear and robust judgment, HHJ Pelling QC, sitting as a deputy High Court Judge in the Administrative Court, dismissed the section 288 challenge and, although granting permission to appeal under section 289, dismissed the substantive appeal.
The appellant then sought permission to appeal to this court against the judge's order. McCombe LJ directed that the application for permission in respect of the section 288 challenge be adjourned to a "rolled-up" hearing but granted permission in respect of the section 289 appeal. It is unnecessary to go into the procedural reasons why he adopted that course. Before us, Mr Warren QC for the Secretary of State disavowed any procedural concerns and raised no objection to our hearing both matters as substantive appeals. That is plainly the appropriate course, and in my view permission to appeal in respect of the section 288 challenge should be granted accordingly.
It is uncontroversial that the refusal of planning permission for, and enforcement against, use of the appeal site for residential caravans was likely to leave the traveller families without a permanent base and having to resort to a roadside existence. The question that arises in that context, and the central issue on the appeal to this court, is whether the best interests of the children were taken properly into account by the Secretary of State in reaching his decision. To answer that question it is necessary to examine (i) the correct general approach towards consideration of the best interests of children in planning decisions of this kind, and (ii) the specific reasoning in the decision letter and in the passages of the inspector's report adopted in the decision letter.
In relation to general approach, there is a substantial measure of common ground between the parties but the areas of disagreement are important.
In relation to specific reasoning, the problem is that neither the inspector nor the Secretary of State referred in terms to the best interests of the children — the decision preceded the recent planning case-law on the subject — and it is necessary to decide whether the correct approach was nevertheless followed in substance.
General approach
Article 3.1 of the United Nations Convention on the Rights of the Child provides: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". The way in which that international obligation has been translated into, and is to be given effect in, our national law has been the subject of detailed examination by the Supreme Court in the context of immigration and asylum in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, and in the context of extradition in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2012] 3 WLR 90. Both those cases explain in particular how the best interests of the child should be taken into consideration when considering the proportionality of interference with rights under article 8 of the European Convention on Human Rights.
The Secretary of State has conceded in recent cases at first instance, and conceded before us, that the principle articulated in those cases should also be applied in the context of planning. As it was put in the skeleton argument of Mr Rupert Warren QC on the present appeal, "the [Secretary of State for Communities and Local Government] accepts that in light of the reasoning in ZH in particular (at [21]), there is a broad consensus in support of the idea that in all decisions concerning children, their best interests must be of primary importance, and that planning decisions by him ought to have regard to that principle".
In considering how the principle is to be applied, it is necessary to bear in mind the statutory framework for planning decisions of this kind. Section 70(2) of the Town and Country Planning Act 1990 provides that in dealing with an application for planning permission a local planning authority "shall have regard to (a) the provisions of the development plan, so far as material to the application, (b) any local finance considerations, so far as material to the application, and (c) any other material considerations". The Secretary of State is subject to the same obligation in relation to an application recovered for determination by him. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that "if regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise". The development plan therefore has a special status within the decision-making process but may be outweighed by other material considerations. It is well established that relevant rights to family or private life under article 8 fall to be taken into account as other material considerations and can be properly accommodated in that way within the decision-making process. Where the article 8 rights of a child are engaged, the best interests of the child can and should be taken into consideration in the article 8 analysis in the manner explained in ZH (Tanzania) and H(H). The decision-maker may be subject to other duties relating to the welfare of children (I refer below to section 11 of the Children Act 2004), but they are unlikely to add anything of substance in relation to best interests where article 8 is engaged.
In Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), which is perhaps the first occasion on which the Secretary of State made a clear concession that the principle in ZH (Tanzania) and H(H) applies in the planning context, Hickinbottom J considered at some length the judgments in those cases and how they affect the approach to be taken by a planning decision-maker. He derived the following propositions from the authorities (at [69]):
"(i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision-making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision-maker must take into account.
(ii) Where the article 8 rights are those of children, they must be seen in the context of article 3 of the UNCRC, which requires a child's best interests to be a primary consideration.
(iii) This requires the decision-maker, first, to identify what the child's best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision-making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child's best interests, and can properly represent and evidence the potential adverse impact of any decision upon that child's best interests.
(iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.
(v) However, no other...
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