Social Welfare Lawyers in the Centre of Birmingham

Collins -v- SSCLG

Collins -v- Secretary of State for Communities and Local Government & Flyde Borough Council [2013] EWCA Civ 1193

The appellant in this case, an Irish Traveller, appealed under sections 288 & 289 of the Town and Country Planning Act (T&CPA) 1990 against a planning inspector’s refusal of planning permission for a site near Blackpool. The planning inspector’s refusal had been upheld by the SSCLG. The appeals were dismissed by Pelling J. The appellant appealed to the Court of Appeal.

On the site were 78 Travellers, including 39 children. One of the central issues in the case was the question of ‘the best interests of the children.’

Reference was made to the Supreme Court judgments on this issue: in the context of immigration and asylum, ZH(Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; in the context of extradition, H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] 3 WLR 90.

Richards LJ gave the leading judgment of the Court of Appeal. Referring to the planning guidance Planning policy for traveller sites issued by the SSCLG, he stated:

The guidance was issued before the Secretary of State’s concession that the principle in ZH(Tanzania) and H(H) applies in the planning context, and it plainly needs revision to take account of that point. The Secretary of State may also wish to consider the provision of guidance to inspectors on the issue, including the possible inclusion of reference to children’s best interests in the letters sent out to the parties in advance  of a public inquiry (para 17).

The Court of Appeal dismissed the appeals. Richards LJ concluded:

41. I have had doubts as to the correctness of Judge Pelling’s conclusion. Nobody concerned in the case was thinking at the material time about the way in which the best interests of the children should be addressed; and whilst the question is one of  substance, not form, I feel cautious about concluding that the decision-maker happened nonetheless to adopt the correct approach in substance. I have been troubled in particular about whether the best interests of the children can be said to have been identified as such and to have been kept at the forefront of the mind as a primary consideration in reaching the decision.
42. In the end, however, I have come down in agreement with Judge Pelling. I accept that in substance the Secretary of State was of the view that the best interests of the children coincided with those of their families as a whole and lay in remaining on the site, because of the general advantages of a settled home and because of the particular considerations of continuity of education and access to health care; but that the children’s best interests and the other factors telling in favour of the grant of planning permission were outweighed by the harm that would be caused by such a grant. The allocations of weight to the various individual factors, and the carrying out of the overall balancing exercise, were consistent with treating the children’s best interests as a primary consideration throughout: those best interests were not necessarily determinative and could properly be found to be outweighed by the identified harm. Importantly, I do not see how the analysis might realistically have been different in substance if the best interests of the children had been dealt with in express terms that would now be considered appropriate….
43….The arguments concerning the best interests of the children apply to the duration of their childhood and would apply also to the childhood of other children born in the future. If those arguments told in favour of the grant of planning permission, it would realistically have to be a permanent permission, not a permission limited in time to, say, three or five years.

Clearly, following this case and the previous case of Stevens v SSCLG [2013] EWHC 792 (Admin), any planning inspector or the Secretary of State himself will now need to deal in express terms in their decisions with the best interests of the children as a primary consideration.

Collins -v- SSCLG & Flyde Borough Council Judgment