It’s complicated

When a relationship comes to an end it can be complicated, and our exit from the European Union is no exception. Until everything is settled, then, the Human Rights Act of 1998 remains in place, and a claim that human rights have been breached or are threatened remains a regular occurrence during the course of planning applications and appeals. That being so, it might be useful to file a recent appeal case (DCS Number 400-024-906), in which the inspector gives a neat summary of the relationship between the planning system and human rights legislation.

This case relates to an appeal against an enforcement notice directed at an unauthorised extension to a house in Kent. The requirements of the notice were to either remove the extension or rebuild the extension to that allowed under a prior approval application.

The appellants claimed that the enforcement notice was in breach of Article 8 and Article 1 of Protocol 1 of the European Convention on Human Rights (ECHR). The inspector explained that the general purpose of the ECHR is to protect human rights and fundamental freedoms and to maintain and promote the ideals and values of a democratic society. It sets out the basic rights of every person together with the limitations placed on those rights in order to protect the rights of others and of the wider community. He recorded that the specific Articles of the ECHR relevant to planning, amongst others, include Article 8 (Right to respect for private and family life, home and correspondence), and Article 1 of Protocol 1 (Right to peaceful enjoyment of possessions and protection of property).

The inspector remarked that the planning system by its very nature respects the rights of the individual whilst acting in the interest of the wider community. It is an inherent part of the decision-making process, he noted, to assess the effects that a proposal will have on individuals and weigh these against the wider public interest in determining whether development should be allowed to proceed. In carrying out this balancing exercise he reasoned that the local authority would wish to be satisfied that it had acted proportionately. In that regard, he noted that the Human Rights Act 1998 added a new dimension to local authorities’ decision-making and a tougher test than the test of reasonableness – one of ‘proportionality’; it looks at whether the action is proportionate to its aim. If a local authority’s decision interferes with human rights then the courts generally require stronger proof that the decision was reasonable.

The inspector remarked that it had not been explained how the effect of the enforcement notice would impact adversely on the appellants’ exercise of their rights. He noted that in the case of R (on the application of RLT Built Environment Ltd) v Cornwall Council [2016] the judge 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. In the inspector’s view, particularly because the enforcement notice did no more than require that the appeal extension should revert to the form allowed by the council’s prior approval, the issue and contents of the notice were entirely proportionate and reasonable. The enforcement notice was upheld.

Comprehensive coverage of human rights legislation can be found at section 4.125 of DCP Online.