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Children

This page contains two cases, one on the grant of planning permission and the other on enforcement, which demonstrate that the interests of children must be given "primary consideration" when making decisions.


Planning permission

Article 8 and the best interests of the child

Stevens v The Secretary of State for Communities and Local Government
[2013] EWHC 792 (Admin)

Summary

The High Court gave guidance about how to apply the best interests of a child as a “primary consideration” in respect of assessing applications for planning permission raising Article 8 issues. The Court held that such interests cannot be eclipsed by other interests on the sole ground of those other interests’ intrinsic importance, but that other interests could outweigh the best interests of a child when those interests were balanced against each other.

Facts

The Claimant (C) and her family (including several children) were gypsies and lived on agricultural land that they had converted to a caravan site without planning permission. The site was in the Green Belt and was adjacent to a Conservative Area. C admitted that the change of use was inappropriate development in the Green Belt and was not suitable for permanent accommodation. She applied for retrospective planning permission and asked for a temporary, four year, permission. This was refused by the Council, who subsequently issued an enforcement notice. C appealed against the refusal and the notice and the appeals were consolidated before an Inspector. The Inspector refused both appeals. C applied to quash the decision to the High Court.

Issue

The main issue was whether the Inspector had erred in the approach she took to considering C’s Article 8 arguments. In particular, the court was required to consider how the Inspector should have approached the best interests of C’s children in light of Article 3 of the UN Convention on the Rights of the Child (“the UNCRC”) and ZH (Tanzania) [2011] UKSC 4; which require the best interests of the child to be “a primary consideration”.

Decision

The High court refused C’s application. It was conceded that Article 3(1) of the UNCRC and the principles from ZH (Tanzania) [2011] UKSC 4; [2011] 2 AC 166 applied to planning determinations in light of a number of previous cases (including Collins [2012] EWCA 2760). As a result, the Court held that where children are involved, their Article 8 rights (which will be a material consideration) must be a “primary consideration”. The Court held that this required those best interests to be identified, but that it will usually be the case that those interests will be the same as those of their primary carer, and that carer will be best placed to put forward evidence as to the impact of any decision on a child. However, the best interests of the children were not determinative. Further it was not necessary for the best interests of a child to be considered first – and then the effect of other considerations determined to see whether they outweigh those interests.

As to the weight of interests, The Court distinguished between the importance attached to a consideration as a matter of policy, and the weight of a consideration relative to other considerations after an assessment of all material considerations.

Whether a decision-maker correctly performs the balancing exercise is to be judged as a matter of substance, not form. In the instant case, the Inspector’s failure to use the term “best interests” was not fatal as she had clearly had those interests at the forefront of her mind when she performed the balancing exercise.

The Court also considered the interplay between previous decisions emphasising that planning merits are for the decision maker, and other decisions emphasising that where human rights are in play it is for the court to make an assessment as to whether any impact on those rights is proportionate. He concluded that a full merits review is unnecessary; that traditional judicial review grounds suffice; but that if Article 8 is engaged the court must consider whether any impact on those rights is proportionate. In considering this, the court must engage with the merits, but must do so with an appropriate degree of deference, bearing in mind the decision maker’s statutory function as an expert.


Enforcement

Best interests of children - Primary consideration

Collins v Secretary of State for Communities and Local Government and Fylde Borough Council
[2012] EWHC 2760 (Admin)

Summary

When considering whether to enforce planning control the local planning authority should have regard to the best interests of the children as a primary consideration, which had happened in this case. What mattered was not the form but the substance of the decision making.

Facts

Land was used by a group of travellers without planning permission. An enforcement notice was issued and C then applied for planning permission for a change of use of the site to land for stationing caravans for residential occupation and associated development. The application and the appeal were refused, and the enforcement notice upheld. C appealed and challenged the decision to uphold refusal of planning permission, and applied for permission to challenge the enforcement decision.

Issue

The primary ground of challenge was that the local planning authority had failed to take into consideration the best interests of the children of C as a relevant consideration. The argument was that Article 3.1 of the United Nations Convention on the Rights of the Child (given effect in domestic law by s11 of the Children Act 2004) applied in the planning context. This followed authority from other areas of law, particularly the case of ZH(Tanzania) v SSHD [2011] UKSC

Decision

It was clear that there was a duty resting on the local planning authority when considering whether to enforce planning control, to have regard to the best interests of the children as a primary consideration (R (Sheridan & Ors) v Basildon DC [2011] EWHC 2938). However, what mattered was not the form but the substance of the decision making, and a format requiring express adoption was not necessary. The court found that on the evidence, the needs of the children had been taken into account as a primary consideration.

Comment

The best interests of any children must be considered as a primary consideration, but that does not mean that such consideration needs to be explicit. A fact-sensitive analysis of all the relevant material considerations relevant to the particular appeal must be considered, and the negative factors identified, assessed and weighed cumulatively against the best interests of any children.


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