Planning and human rights

The courts have considered the first challenge to a neighbourhood plan on human rights grounds. The plan survived but the case served as a reminder of a body of law with enduring relevance to planning, writes Sue Chadwick.

RLT Investments [1]

In this recent case the Council’s decision to hold a referendum on the draft St Ives NDP was challenged on the ground that Policy H2 was incompatible with article 8 of the ECHR – the right to respect for private and family life, home and correspondence. The argument was that Policy H2 of the plan, restricting new housing unless required as a ‘principal residence’ was incompatible with Article 8 because it would restrict future occupiers and could not be justified on the basis of public interest.

Justice Hickinbottom set out the relevant principles established from previous cases:

• Article 8 does not give a right to a home,
• Where someone has a home in a particular dwelling, it may interfere with the Article 8 rights to require that person to move;
• Article 8 rights are a material planning consideration and should be respected but are not guaranteed;
• The rights have to be balanced against all other material considerations and this will be a planning judgment;

The ground did not succeed. Justice Hickinbottom was ‘not entirely convinced’ that the policy in question could create a situation where article 8 was engaged. Even if this were to be the case, the nature of the restriction would allow an individual to “reasonably organise his affairs” well in advance.

In the course of the case Justice Hickinbottom commented that while Article 8 rights were important, it should not be assumed that they would “outweigh the importance of having coherent control over town and country planning” and that in most cases the courts were unlikely to intervene.

This is a fair summary of human rights and planning since the Human Rights Act 1998, where, successful claims have been few and far between.

Alconbury

Article 6 of the Convention is the right to a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” In December 2000 the High Court ruled in relation to a group of different cases, all raising the same issues, that the planning system as a whole was incompatible with that right. As both policy maker and decision taker the Secretary of State was not 'an independent and impartial tribunal'.

The decision was overturned in the House of Lords in May 2001. The law lords acknowledged the political motivations of the Secretary of State but were satisfied that the procedural safeguards offered by the courts were sufficient to guarantee the Article 6 rights with Lord Slynn commenting that: “The adoption of planning policy and its application to particular facts is quite different from the judicial function”.

Gypsies and Human Rights – Buckley to Moore

Article 8 has been an issue in a number of cases involving gypsies, including the European Court of Human Rights ruling in Buckley [2].  The applicant claimed that the effect of an enforcement notice was to prevent her from living on her own land and from following a travelling life and that this was a violation of her Article 8 Rights.

The Court was satisfied that Mrs Buckley had indeed established a home on the land, that the enforcement notices interfered with that right and this was relevant to her and her children’s security and well-being. However the Court was also satisfied that “proper regard was had to the applicant's predicament”, that the competing interests had been properly weighed and that it was beyond the Court’s remit to assess the merits of the decisions made.

The Moore case decided in 2015 was unusual in that it included a successful challenge on human rights grounds [3]. It concerned an application for change of use of land to a Caravan Site in Bromley where, just seven days before the inquiry was due to be heard the decision-making function was recovered by the Secretary of State. His eventual decision refusing permission for the development was challenged in June 2014 with the Equality and Human Rights Commission (‘EHRC’) as an intervening party and on a number of grounds including a breach of Articles 6 and 8 of the European Convention of Human Rights (“ECHR”);

The case was considered by Justice Gilbart who quashed the decision on a number of grounds. His decision included the following findings:

• By September 2013 all appeals relating to traveller sites in the Green Belt were being recovered (para 35,39); and use of recovery powers in this way under the heading of significant development in the Green Belt was difficult to justify (para 74);
• The policy approach adopted created a clear disparity between Traveller and non-Traveller developments(para 65);
• Substantial delay had been created in the decision-making process: “In the experience of this judge, waiting for a decision for 12 months is only to be expected in the cases of very substantial development indeed.”

He went on to rule that the practice of calling in all cases related to this community was directly discriminatory (para 125), that the change in the call in policy had the effect of causing significant delay in the decision-making process (para 76), and that as a result there had been a clear breach both of the Public Sector Equality Duty, and of Article 6 of the Convention (para 135, 150). The Government subsequently confirmed its intention to ‘de-recover’ appeals for Traveller developments in the Green Belt where a decision had not been reached [4].

As recognised by Justice Hickinbottom, it is unlikely that there will be many other successful challenges to planning decisions on human rights grounds, but the vote to leave the EU may bring Article 8 centre stage again.  

Withdrawing from the EU does not mean withdrawing from the separate European Convention on Human Rights and there is no sign that this is part of the Government’s current intentions. However, in his recent evidence to the Joint Committee on Human Rights inquiry into the human rights implications of Brexit [5], Professor Colm O’Cinneide referred to the example of a ‘friend of a friend’ resident in the UK married to a French national and not working. The professor made the following point:

“If UK law post withdrawal from the EU changes, which means that he no longer has a right to maintain a residence in the UK, … there will be an Article 8 issue, because he has not an embedded right in the legal sense but his life has become embedded; his family life is embedded in the UK. If the UK is going to justify substantially restricting his ability to maintain that family life in the UK, it is going to have to show some very strong objective justifications.”

Sue Chadwick is a Senior Associate at Birketts. She can be contacted on 01223 326615 or This email address is being protected from spambots. You need JavaScript enabled to view it..