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Court Guidance on Approach to Human Rights in Planning Cases

In opening the way for eviction of an extended family of gypsies – including several children – from a green belt site in Surrey, the High Court has given authoritative guidance on the correct balance to be struck between human rights and the proper enforcement of planning control.

caravanThe family, comprising several adults and at least two primary school-age children, had moved onto the site adjoining a conservation area in 2009. Guildford Borough Council subsequently refused retrospective planning permission and issued an enforcement notice, requiring clearance of the land.

The family’s challenge to those decisions was rejected by a planning inspector who acknowledged that, given the scarcity of authorised traveller sites in the area, her decision would have a serious impact on the children, who were attending a local school, and would probably consign the family to living by the roadside.

In dismissing the family’s appeal against that decision, Mr Justice Hickinbottom observed: “The application raises important issues as to the approach of both planning decision-makers and the court to proportionality in circumstances in which a planning decision engages the right to respect for family life under article 8 of the European Convention on Human Rights and in particular involves the rights of children”.

The family’s lawyers had argued that the best interests of the children in having a settled home and access to education should have been treated by the inspector as a ‘primary consideration’ that outweighed planning objections to the encampment. Such an approach was demanded by a combination of article 8 and article 3 of the United Nations Charter on the Rights of the Child (UNCRC), it was submitted.

The judge acknowledged that the interests of children had to be given ‘substantial weight’ by decision-makers but ruled that they were not necessarily determinative of planning issues. Questions of proportionality were matters ‘of substance and not form’ and human rights claims in the planning context were ‘necessarily context-specific’.

The inspector had ‘maintained the children’s best interests at the forefront of her mind’ before ruling that eviction would not have a ‘disproportionate impact’ upon them. Her decision was ‘clearly proportionate’, given the acknowledged importance of protecting rural areas from unauthorised residential development, the judge concluded.