How does planning law fit with the rights of the family and of the child under international law? David Hart QC analyses a recent High Court ruling.
As Hickinbottom J explicitly recognised, the case of Stevens v Secretary of State for Communities & Local Government raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).
The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.
Ms Stevens’ planning problem was that there was Government policy strongly tending against inappropriate development in the Green Belt. Under section 288, as with judicial review challenges, she must establish some error of law in the inspector’s decision.
The inspector did refer in her decision letter to Article 8 being engaged in the case, because she recognised that Ms Stevens’ and her children’s rights were in play and any disproportionate impact on them had to be balanced against the legitimate aims of the Green Belt policy.
Traditionally, that would have been enough – the decision would be unchallengeable because the Inspector had carried out the right balancing exercise. Planning decisions inevitably involve swathes of policy, and the courts are reluctant to go wading into such issues without a strong requirement that they do so. It is notoriously difficult to mount a challenge if the only legal vehicle one has is Wednesbury unreasonableness – a strong test for irrationality.
But, as the judge concluded, Wednesbury review was not the end of the story – for two reasons.
The first is Article 3(1) of the UNCRC: "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 SoS initially argued that, because the UNCRC is an international convention which has not been incorporated into domestic planning law, planning decisions were not bound to reflect its terms. However, he was constrained to accept that recent precedent such as HH v Genoa and ZH (Tanzania) and, in the planning context, AZ v SoS went against this. A child’s Article 8 ECHR rights had to be looked at “through the prism of article 3(1),” (HH at , and Article 3 UNCRC did apply to planning decisions just as to any other area of administrative decision.
The second reason was the development of the principle that a true proportionality review was a stronger weapon than a Wednesbury review. The judge summarised the problem, and the key cases, as follows:
"Furthermore,…….the House of Lords have held that, where the proportionality of the impact of a decision on human rights is at issue, that is a substantive question to be objectively determined by the court, and not a procedural one that requires the court to investigate the decision-making process (R (SB) v Governors of Denbigh High School  UKHL 15: (“SB“) and Miss Behavin’ Ltd v Belfast City Council  UKHL 19; (“Miss Behavin’“))
Thus, in SB, Lord Bingham said (at ): ”The focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated”;
and, consequently, what matters in any case is “the practical outcome, not the quality of the decision-making process” (at )."
So these were the new weapons:
- A Convention telling us that the best interests of the child shall be a primary consideration;
- Cases saying that it was for the Court, not for an administrative decision-maker such as the planning inspector, to decide how those interests could be squared with other planning considerations.
Ms Stevens said that the Inspector had not invoked Article 3 UNCRC, and that the Court should do so by recognising its paramountcy over Green Belt policies.
No, said the judge. The best interests of the child were not determinative, nor were they paramount; Article 3 says “a primary consideration” not “the primary consideration”. Nor should they be considered temporally or logically first.
He then had to work out how to square the respective obligations of inspector and court – there being a further complication that under the s.288 scheme (unlike judicial review) all the court can do is quash an unlawful decision and send it back for determination (even in an HR case) – the Court could not give a substantive answer in favour of Ms Stevens’ rights.
The judge summarised what all this law led to on a s.288 challenge at : (my emphasis)
i) The application does not require a full merits review. It requires review on traditional judicial review grounds, together with consideration of whether the resulting decision engages article 8 and, insofar as it does, whether the adverse impact of the decision on the article 8 rights engaged is proportionate to the legitimate aims sought to be protected (including both the public interest, and the rights and interests of other individuals).
ii) In considering whether the decision breached relevant article 8 rights, the court is required to consider the merits, with appropriate scrutiny, but it should do so bearing in mind that the inspector’s function, assigned to him by the statutory scheme and ultimately Parliament, is to consider the merits of all material considerations, including any article 8 rights that are engaged.... considerable deference ought to be attached to his conclusion.
iii) Proportionality is a question of substance and not form. If the inspector has clearly engaged with the article 8 rights in play, and considered them with care, given his wide margin of discretion, it is unlikely that the court will interfere with his conclusion on grounds of proportionality. If he has not – even if he has not referred to article 8 rights at all – on usual principles, the court will not quash his decision if his error is immaterial. If his error is material, then it is open to the court to find that the interference with the relevant human rights is in any event proportionate; or quash the decision.
He then applied this approach to the case. He rejected the contention that the Green Belt policy was unlawful because it could not stand with the Article 3 UNCRC duty. He also said that the inspector was entitled to conclude that the interests of the children were of moderate weight, without offending that Article 3 duty. Whilst she did not use the Article 3 phrase “best interests” (because her decision pre-dated ZH (Tanzania), she did indeed have the interests of the children in the forefront of her mind, as the case law would now require.
Hence, he rejected Ms Stevens’ challenge.
The judge’s real problem was that human rights principles (and the role of the court in their determination) were arising in a statutory context emphatically not designed for their sensible adjudication. The problem does not arise with the Adminstrative Court on judicial review; when a court needs to decide something hard-edged to comply with its human rights obligations, it simply gets on and does it, even, in some rare cases, involving hearing evidence itself (see the bull case posted here). Therefore, the judge was faced with the unenviable task of tweaking the court’s role on a s.288 challenge so as to make it a bit more intrusive than hitherto recognised, without discarding the perceived benefits of a specialist inspectorate as required by the statutory scheme.
One other thing. The judgment (summarised very shortly above) is an excellent compilation of the caselaw on intensity of review, Article 8 and public policy. One to be read by generalist human rights lawyers and commentators – not just the planners.