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Human rights


The council issued enforcement notices requiring a number of gypsies to remove mobile homes and caravans from a parcel of land belonging to one of them. The land was not within the Green Belt nor did it attract any special designation. The gypsies appealed to the Secretary of State. His inspector upheld the appeal on the ground that the development did not materially breach any relevant development plan policy. He noted that the council were in breach of national policy guidance on the provision of adequate gypsy sites, and went on to find that the council had violated the gypsies rights to respect for their private and family life and their home pursuant to Article 8 of the European Convention on Human Rights. The enforcement notices were a disproportionate response to the gypsies alleged breach of planning control. He accordingly granted planning permission for the development

The council challenged this decision successfully in the High Court, with the result that the grant of planning permission was quashed. The gypsies and the Secretary of State appealed.

Held: By a majority, the Court of Appeal allowed the appeal. The councils legitimate action in issuing enforcement notices was an interference with the gypsies Article 8 rights. The question for the inspector was whether that interference was justified and proportionate. In answering that question, the failure of the council to comply with national policy guidance was a factor that he was entitled to take into account.

Comment: Auld LJ did not consider that there had been a disproportionate violation of the gypsies Article 8 rights, and so dissented. It should be noted that the other two members of the court were at pains to point out that the Article 8 rights in question were not the non-existent rights as gypsies to be provided with a home, or a site for a home, by the state but rather to respect for the homes that they had created, albeit in breach of planning control. Needless to say, this decision will cause concern to many local planning authorities.

Chichester District Council v First Secretary of State [2004] EWCA Civ 1248

This is another decision in a recent line of cases concerning gypsies, article 8 of the ECHR and alternative sites. The Court in this case rejected the submission that the matter of weight to be attached to any factor in undertaking the balancing exercise required in respect of Article 8 of the ECHR should not be for the decision maker but that there should be a review of the decision based on the relative weight accorded to the interests and considerations which have engaged the human rights convention. In this case, that the family in question were gypsies. The Court held:
    In my judgment the difficulties which arise in connection with gypsy cases do not, when the balancing exercise is carried out, enable one to conclude that as a matter of principle the gypsy status and its attendant difficulties for housing and families are determinative or dispositive of any case. Each case requires the balancing exercise to be carried out by reference to all the circumstances. In this case, it was not simply the availability in the future by way of an opportunity, which could not be ruled out, which was in the scales so far as the inspector was concerned, also in the balance were the inspector's conclusions in connection with the personal considerations in connection with the family.

    In my judgment it is not open to this court, unless circumstances are very different from the ones shown to me, for the court to select one aspect of the Article 8 rights as they affect a gypsy family, namely the availability of alternative accommodation, and, having selected that, conclude that more weight should have been attached to it by the inspector. The balancing exercise is a balance of all the considerations
Evans (R on the application of) v (1) First Secretary of State (2) Wigan Metropolitian Borough Council (2005) [2005] EWHC 149 (Admin)

Loss of amenities

The appellants challenged the grant of planning permission on appeal for the erection of a 20-storey building on a site at Bankside, London SE1. They relied upon Article 8 (Right to respect for private and family life) of the ECHR and also Article 1 (Protection of property) of the First Protocol to the ECHR. They contended that the development would result in a loss of privacy and light, overlooking and interference with television reception for residents of two nearby blocks of flats, as well as a diminution in value of some of those properties. They also argued that the inspector had acted unlawfully in failing to deal specifically with the issue of proportionality. The inspector had recognised that certain of these consequences would flow but determined that their effects would not be so great as to be unacceptable when set against the advantages offered by the development.

Decision: CA upheld the decision of the first instance judge to dismiss the appellants claim. Article 8 created no absolute right to amenities currently enjoyed and that its role had to be seen in the context of competing rights. That article, and Article 1 of the First Protocol, acknowledged the right of the landowner to make beneficial use of its land subject to appropriate planning control, and the prospective developer was entitled to the enjoyment of its possessions. Furthermore, the absence of the word proportionality from the inspectors report did not render his decision unsatisfactory or liable to be quashed. The concept of proportionality was inherent in the approach to decision-making in planning law.

Comment: The test of proportionality is that between the public objective and the private cost. The decision maker has to be certain that the steps necessary for the attainment of the public objective sought do not impose an excessive burden on the individuals whose private interests are at stake.

Lough v First Secretary of State [2004] EWCA Civ 905

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