Stevens -v- SSCLG & Guildford Borough Council  EWCH 792 (Admin) 10 April 2013
In this case Mr Justice Hickinbottom held that a planning inspector had complied with the requirement laid down by Article3(1) of the United Nations Convention on the Rights of the Child (UNCRC) and Article 8 of the Convention when dismissing an appeal against a local authority’s decision to refuse to grant temporary planning permission for a Gypsy site in the Green Belt.
When reaching his decision the Judge also rejected the argument that national planning policy which requires decision makers to give ‘substantial weight’ to the fact that development is inappropriate in the Green Belt conflicts with the requirement under Article 3(1) of the UNCRC not to treat any other consideration as inherently more significant than the best interests of the children. An appeal against the judge’s findings on both points is being pursued in the Court of Appeal. Less controversially, the Judge added that the following principles should be followed in planning cases which were likely to affect the interests of children:
i) Given the scope of planning decisions and the nature of the right to respect for family and private life, planning decision making will often engage article 8. In those circumstances, relevant article 8 rights will be a material consideration which the decision maker must take into account.
ii) Where the article 8 rights are those of children, they must be seen in the context of article3 of the UNCRC, which requires a child’s best interests to be a primary consideration.
iii) This requires the decision maker, first, to identify what the child’s best interests are. In a planning context, they are likely to be consistent with those of his parent or other carer who is involved in the planning decision making process; and, unless circumstances indicate to the contrary, the decision-maker can assume that that carer will properly represent the child’s best interests, and properly represent and evidence the potential adverse impact of any decision upon that child’s best interests.
iv) Once identified, although a primary consideration, the best interests of the child are not determinative of the planning issue. Nor does respect for the best interests of a relevant child mean that the planning exercise necessarily involves merely assessing whether the public interest in ensuring planning controls is maintained outweighs the best interests of the child. Most planning cases will have too many competing rights and interests, and will be too factually complex, to allow such an exercise.
v) However, no other consideration must be regarded as more important or given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case. Further, the best interests of any child must be kept at the forefront of the decision-maker’s mind as he examines all material considerations and performs the exercise of planning judgment on the basis of them; and, when considering any decision he might make (and, of course, the eventual decision he does make), he needs to assess whether the adverse impact of such a decision on the interests of the child is proportionate.
vi) Whether the decision maker has properly performed this exercise is a question of substance, not form. However, if an inspector on an appeal sets out his reasoning with regard to any child’s interests in play, even briefly, that will be helpful not only to those involved in the application but also to the court in any later challenge, in understanding how the decision maker reached the decision that the adverse impact to the interests of the child to which the decision gives rise is proportionate. It will be particularly helpful if the reasoning shows that the inspector has brought his mind to bear upon the adverse impact of the decision he has reached on the best interests of the child, and has concluded that that impact is in all the circumstances proportionate.