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28 FEB 2013

AZ v (1) Secretary of State for Communities and Local Government and (2) South Gloucestershire District Council [2012] EWHC 3660 (Admin); (2013) PLLR 012

Planning - mobile home - green belt - sections 288 Town and Country Planning Act 1990 - mental health - psychiatric evidence - Article 8 European Convention on Human Rights - right to respect for family life - proportionality - rights of applicant's family members - personal condition - temporary permission - Hearing Rules

A planning inspector's decision to refuse an appeal was to be quashed where she had failed to take into account all the evidence, had failed to conduct a structured proportionality assessment of whether the rights to a private and family life of the applicant and his family would be breached by a refusal of planning permission, and had failed to consider whether a personal condition or temporary permission might be appropriate.

20 December 2012

Administrative Court

HHJ Anthony Thornton QC

(1)        The applicant (AZ) suffered from severe mental health problems and a disabling hand injury which required him to live a secluded, outdoor lifestyle. He and his estranged wife had purchased a field on green belt land in which to site a mobile home, in order that he might enjoy such a lifestyle. His son from a previous relationship lived with him and the two relied on support provided by AZ's wife, who visited daily. AZ's wife was also primary carer to her chronically disabled sister, with whom she lived. Planning permission had been refused and AZ had been prosecuted for non-compliance with enforcement notices. The mobile home had been moved to a more secluded area of the site and planning permission reapplied for. The inspector refused AZ's appeal on the basis that there were no very special circumstances to outweigh the harm to the green belt.

(2)        AZ challenged the inspector's decision under section 288 of the Town and Country Planning Act 1990 (the 1990 Act) on the basis that (i) she had failed to properly take account of and give proper weight to psychiatric evidence demonstrating his need to live an outdoor lifestyle and the harm being removed from the site would cause; (ii) that she had failed to take into account the Article 8 rights of AZ, his son, his wife, his wife's sister and his son's biological mother; and (iii) that she had failed to properly consider whether the imposition of a personal condition or temporary planning permission might be appropriate.

(3)        HHJ Anthony Thornton QC held (i) that, in deciding whether or not there were any very special circumstances which could outweigh the damage to the green belt, the planning inspector had failed to take proper account of the evidence of AZ's psychiatric condition. In only considering his fear of enclosed spaces, she had overlooked his serious personality disorder, the pain suffered due to his hand injuries, his flashbacks, depressive personality disorder and suicidal tendencies, his low IQ and illiteracy and difficulties coping with life which required him to live in a secluded and open-air environment close to his wife, from whom he received constant support, but who could not live with him due to being a full-time carer for her disabled sister. The inspector's decision was based on incomplete evidence, rendering her proportionality assessment incomplete [127]. (ii) The Article 8 rights of AZ, his son, his wife and his wife's sister were clearly engaged (Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39 followed), although those of the son's biological mother were not. The inspector was wrong to look only at those considerations she had taken into account when assessing whether very special circumstances existed, as a proportionality assessment required her to look at all relevant factors. It was incumbent on the inspector to undertake a structured proportionality assessment. She failed to do this as she gave little weight to those considerations she had identified and did not look at other relevant considerations [74] - [85], [130], [133], [148]. (iii) The Hearing Rules placed the inspector under a duty to ensure that all evidence and materials necessary to undertaking the proportionality assessment were available and considered. This was particularly true given that AZ did not have legal representation and was illiterate [109] - [111]. (iv) Once she had decided that the application for full permission had been properly refused, the inspector failed to consider whether full permission subject to conditions or temporary permission might be appropriate. This was a breach of her obligation to conduct an inquisitorial hearing under the Hearings Rules. Her consideration of a time-limited condition had been flawed as she had only looked at whether AZ's psychiatric condition was likely to change. (v) The inspector's decision to refuse the appeal was did not take into account a series of requirements. It was to be quashed and the Secretary of State was to reconsider it in light of this judgment [161].

Decision quashed.

Key paragraphs

[5] - [6] - Introduction

[7] - [42] - The background facts

[43] - [46] - The appeal

[47] - [49] - The appeal decision

[49] - The issues arising on this application

[50] - [121] - The law

[122] - [127] - Issue 1- Whether the inspector failed properly to consider and asses the psychiatric evidence and thereby failed properly to assess the weight to be given to this evidence

[128] - [148] - Issue 2 - Whether the inspector failed to consider the applicant and his son's and wife's and sister-in-law's article 8 rights

[149] - [160] - Issue 3 - Whether the inspector failed properly the assess the claim for temporary planning permission

[161] - Overall conclusions.

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