ECHR Article 8 and Planning

November 11th, 2016

In R (RLT Built Environment Ltd) v Cornwall Council (2016 EWHC 2817 (Admin) Hickinbottom J dismissed a challenge to the decision of the Council as LPA to hold a Local Referendum on the making of the St Ives Neighbourhood Development Plan.  The Claimant contended that the Plan includes Policies on future housing provision, including in particular residency requirements intended to limit second home ownership in the St Ives area, which are incompatible with ECHR Article 8 (and also EU law on Strategic Environmental Assessments).  The Judge, at paragraphs 81-83, set out the following propositions with respect to the relationship between the domestic planning scheme and ECHR Article 8 and in particular planning control, eg decisions in respect of planning permission or enforcement:-

  1. Article 8 does not give a right to a home, or to have a home in a particular place;
  2. However, where someone has a home in a particular dwelling, it may interfere with the Article 8 rights of him and/or his family to require him/them to move;
  3. Whilst those rights demand “respect”, they are of course not guaranteed: in this context, as much as any other, the public interest and/or the rights and interests of others may justify interference with an individual’s Article 8 rights;
  4. Where Article 8 rights are in play in a planning control context, they are a material consideration; and any interference in such rights caused by the planning control decision has to be balanced with and against all other material considerations, the issue of justification for interference with Article 8 rights effectively being dealt with by way of such a fair balance analysis;
  5. That balancing exercise is one of planning judgment;
  6. Consequently, it may be amenable to more than one, perfectly lawful, result;
  7. The Court will interfere only if the decision is outside the legitimate range;
  8. Indeed, in any challenge, the Court will give deference to the decision of the primary decision-maker, because he has been assigned the decision-making task by Parliament, and he will usually have particular expertise and experience in the relevant area;
  9. Such a decision-maker will be accorded a substantial margin of discretion;
  10. The deference and margin of discretion will be the greater if he has particular expertise and experience in the relevant area, and/or if he is acting in a quasi-judicial capacity (such as an Inspector);
  11. If the decision-maker has clearly engaged with the Article 8 rights in play, and considered them with care, it is unlikely that the Court will interfere with his conclusion;
  12. Article 8 rights are, of course, important: but it is not to be assumed that, in an area of social policy such as planning, they will often outweigh the importance of having coherent control over town and country planning, important not only in the public interest but also to protect the rights and freedoms of other individuals;
  13. In practice, cases in which the Court will interfere are likely to be few;
  14. These propositions apply equally to decisions made in respect of plans and programmes in the planning field;
  15. Indeed, given that planning plans provide a framework for decision-making in individual cases – and, generally, human rights cannot be considered in a vacuum but only in the application of law and policy to an individual case; the margin of appreciation allowed to planning authorities in preparing such plans must be particularly broad.
  16. Furthermore, in considering whether a statutory scheme (including policy) is compliant with Article 8, it is necessary to look at the scheme as a whole, including the checks and balances that are designed to protect – or have the effect of protecting – an individual from any potential breach of Article 8;
  17. A regime is compliant with Article 8 if, as a whole, it is capable of protecting relevant Article 8 interests.

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