COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
MR JUSTICE COLLINS QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LORD JUSTICE SCOTT BAKER
| DAVID LOUGH & ANRS
|- v -
|FIRST SECRETARY OF STATE
BANKSIDE DEVELOPMENTS LIMITED
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MISS N LIEVEN (instructed by the Treasury Solicitor) for the Respondent
MR M LOWE QC & MR WOLTON QC for the Interested Party
Crown Copyright ©
Lord Justice Pill:
"Protection of Amenity
Planning permission for any development or change of use will not normally be granted where it would involve nuisance or loss of amenity to adjacent users, residents and occupiers of the surrounding area.
Reason: to protect the amenity of the area and of the people living, or working in, or visiting the area. "
"Whether or not the proposed development would: firstly, affect the residential amenities of any neighbouring dwellings; secondly, affect the amenities of the Tate Modern; and thirdly, if such amenities are adversely affected, whether or not there is justification to allow the appeal and grant planning permission. In the light of evidence and submissions made by BROAD I have identified a main issue of equal importance, namely whether or not the design of the proposed development is of sufficiently high quality in relation to the location of the site in the Bankside area and adjacent to Tate Modern."
The Inspector resolved the last of those main issues in favour of the interested party and further consideration of it is unnecessary for present purposes.
"where, in making any determination under the planning acts, regard is to be had to the development plan, a determination shall be made in accordance with the plan unless material considerations indicate otherwise."
In relation to the first of the main issues he had identified, the Inspector concluded, first (paragraph 43), that "dismissal of the appeal for reasons relating to privacy and overlooking is not justified". However, he also concluded (paragraph 48) that "insofar as the matters of daylight, sunlight and overshadowing are concerned, the proposed development is not consistent with the relevant part of UDP Policy E3.1" He was not convinced that the proposed development caused unacceptable harm to Tate Modern and its facilities. As to the third issue, and having referred to what he considered to be a breach of Policy E3.1, the Inspector stated, at paragraph 54:
"However, by virtue of the technical evidence produced by the [interested party] at the inquiry I am not convinced that this issue is of such force as to warrant dismissal of the appeal when weighted against the advantages that would result from the proposed development".
He stated, at paragraph 55, that the loss of daylight "would not be so great as to render the affected rooms [in the neighbouring dwellings] incapable of continued beneficial use. ….The loss of daylight and sunlight to neighbouring residential properties and their overshadowing are regretted, but from the evidence before me I am not persuaded that the effects would be so great as to prove unacceptable".
"Set against the effects on these neighbouring dwelling are the advantages that would stem from the proposed development. In addition to compliance with the general thrust of national, regional and local planning policies the Appellants list them as:
a) the removal of an unsightly building:
b) the construction of a building of substantial design quality;
c) the provision of sustainable residential development;
d) the efficient use of previously developed land;
e) the provision of affordable housing;
f) the provision of funds for environmental improvement by means of a Section 106 planning obligation;
g) the erection, potentially, of a beautiful building that would make a positive contribution in urban design terms;
h) a contribution to the regeneration of this area of London.
I accept that these are indeed benefits that would result from erection of the proposed building. Having weighed the degree to which the proposed development fails to comply with UDP Policy E3.1 against all the other issues and foregoing matters, especially the advantages that would stem from the proposed development, I find that there is justification to warrant an exception to UDP Policy E3.1. In the circumstances I am disposed to allow the appeal and to grant planning permission."
"Bearing all these matters in mind I conclude that no interference with the European Convention on Human Rights ["the Conventon"] has been established. Accordingly, insofar as Articles 1, 6 and 8 of the Convention are concerned, I am satisfied that the rights of the residents of Falcon Point, and also the residents of Bankside Lofts, have not been violated".
(The reference to Article 1 was clearly intended to be a reference to Article 1 of the First Protocol).
The Inspector added, at paragraph 64:
"Matters of property valuation and the financial status of the [developers] were raised at the enquiry, but I place no importance on them as they do not amount to material planning considerations".
That proposition is not challenged but it is submitted that the diminution in value is relevant to the extent mentioned in paragraph 11 of this judgment.
Submissions and judgment of Collins J
"28. A balance has to be struck in planning decisions such as the present between the rights of the developer and the rights of those affected by the proposed development. If an adjoining occupier seeks to build on or change the use of his land, an individual is likely to be affected and his enjoyment of his property may be interfered with. In addition, the public generally may be affected if, for example, conservation areas or the green belt is affected. These various matters have all to be weighed and that is what a local planning authority or an inspector will do. In the vast majority of cases, that exercise will deal with all matters which are relevant in deciding proportionality within the meaning of Article 8 or Article 1 of the First Protocol………. While no doubt it would be sensible to refer explicitly to proportionality so as to avoid challenges such as this, it is not in my view necessary provided it is clear that all relevant factors have indeed been considered and the result would not be any different.
29. It is difficult not to sympathise with the claimants. Those who live in Falcon Point have had to put up with the disruption of the building of Bankside Lofts and the construction work at Tate Modern. Their amenities will be adversely affected. But in an urban setting it must be anticipated that development may take place and that high rise buildings are inevitable having regard to building costs and the value of city centre land. Further, it is in the public interest that residential developments take place in urban areas if possible. It is clear that the inspector did consider the advantages of the proposed development against the disadvantages to the claimants. It is inconceivable that he would have reached any different conclusion if he had specifically dealt with proportionality. The obstruction of views for some and any diminution in value would not have affected the position having regard to the inspector's findings in relation to the desirability of this development. In reality, the inclusion of Article 1 of the First Protocol adds nothing since any diminution in value is an effect of the loss of amenity: see Malster at paragraph 89 per Sullivan J. [ R(Malster)) v Ipswich Borough Council  PLCR 251].
30. While it may be correct to say that it is unnecessary to look for a threshold, it makes no difference in practice. If the interference is slight, it will be very easy to show that it is proportionate. The inspector has not erred in his approach to the balancing exercise required by the planning legislation. There is no possibility that he would or should have reached a different conclusion had he specifically referred to proportionality. "
Considerations other than Article 8
Submissions on the test to be applied
"At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention Rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons ?"
Dyson LJ concluded, at paragraph 25:
"I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention Right, the task for the decision maker, when deciding whether to interfere with the Right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention Rights on the other".
"Article 8 rights are not absolute. They are qualified in the sense that they do require a balance to be struck, and it is not submitted that Article 8 rights are of a special importance by comparison with other rights guaranteed by the Convention".
At paragraph 51, the judge referred to factors which "point towards a considerable measure of deference being accorded to the judgment of the decision-taker as to proportionality, it having been established that the necessity threshold has been crossed".
"I do not think there can be any real doubt that the inspector considered both that the condition was the least intrusive interference to achieve the policy of one for one replacement, as he put it, and that the environmental interest which he assessed to be very important outweighed the Article 8 interest in the circumstances of this case. This was essentially a balancing exercise for him in the light of the information he had."
The scope of Article 8 in context
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 1 of the First Protocol to the Convention provides:
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties"
"Naturally, severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health."
At paragraph 58, the Court stated:
"Having regard to the foregoing, and despite the margin of appreciation left to the respondent State, the Court considers that the State did not succeed in striking a fair balance between the interest of the town's economic well-being – that of having a waste-treatment plant - and the applicant's effective enjoyment of her right to respect for her home and her private and family life."
"The Court considers that Italy cannot be said to have "interfered" with the applicants' private or family life; they complained not of an act by the State but of its failure to act. However, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life ."
The Court stated, at paragraph 60:
"The Court reiterates that severe environmental pollution may affect individuals' well being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely….The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants' right to respect for their private and family life, in breach of Article 8 of the Convention. "
"Article 8 protects the individual's right to respect for his or her private and family life, home and correspondence. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Art.8."
Having cited Lopez Ostra and Guerra, the Court stated:
"97. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy maker should be given special weight.
98. Article 8 may apply in environmental cases whether the pollution is directly caused by the State or whether State responsibility arises from the failure properly to regulate private industry. Whether the case is analysed in terms of a positive duty on the State to take reasonable and appropriate measures to secure the applicants' rights under para.1 of Art.8 or in terms of an interference by a public authority to be justified in accordance with para.2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Art.8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance."
That paragraph restates what the Court had stated in Powell & Rayner v United Kingdom  12 EHRR 355, at paragraph 41.
"The question is whether, in the implementation of the 1993 policy on night flights at Heathrow Airport, a fair balance was struck between the competing interests of the individuals affected by the night noise and the community as a whole".
"… It would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights. In this context the Court must revert to the question of the scope of the margin of appreciation available to the State when taking policy decisions of the kind at issue".
Having considered the evidence, the Court concluded, at paragraph 129, and by a majority of 12 to 5:
"In these circumstances the Court does not find that, in substance, the authorities overstepped their margin of appreciation by failing to strike a fair balance between the right of the individuals affected by those regulations to respect for their private life and home, and the conflicting interests of others and of the community as a whole, nor does it find that there have been fundamental procedural flaws in the preparation of the 1993 regulations on limitations for night flights."
"inherent in the whole of the Convention is a search for fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's human rights"
"On the other hand, in spheres involving the application of social or economic polices, there is authority that the margin of appreciation is wide, as in the planning context where the Court has found that "[i]n so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation (Buckley v the United Kingdom, judgment of 26 September 1966, Report of Judgments and Decisions 1966-IV,p.1292, 75 in fine)…..Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (Hatton and others v the United Kingdom,[GC] no. 365022/97, ECHR 2003-…, 103 and 123) "
"Direct and serious interference of this nature with a person's home is prima-facie a violation of a person's right to respect for his private and family life (Article 8) and of his entitlement to peaceful enjoyment of his possessions (Article 1 of the First Protocol). The burden of justifying this interference rests with Thames Water. "
"In the present case the interests Parliament had to balance included, on the one hand, all the other customers of a company whose properties are prone to sewer flooding and, on the other hand, all the other customers of the company whose properties are drained through the company's sewers. The interests of the first group conflict with the interests of the company's customers as a whole in that only a minority of customers suffer sewer flooding but the company's customers as a whole meet the cost of building more sewers. As already noted, the balance struck by the statutory scheme is to impose a general drainage obligation on a sewerage undertaker but to entrust enforcement of this obligation to an independent regulator who has regard to all the different interests involved. Decisions of the director are of course subject to an appropriately penetrating degree of judicial review by the Courts."
Lord Nicholls concluded, at paragraph 43, that "in principle this scheme seems to me to strike a reasonable balance. Parliament acted well within its bounds as policy maker".
"…That decision makes it clear that the Convention does not accord absolute protection to property or even to residential premises. It requires a fair balance to be struck between the interests of persons whose homes and property are affected and the interests of other people, such as customers and the general public. National institutions, and particularly the national legislature, are accorded a broad discretion in choosing the solution appropriate to their own society or creating the machinery for doing so."
"…If Article 8 does not vest in the home-occupier any contractual or proprietary right that he would not otherwise have, and does not diminish or detract from the contractual or proprietary rights of the owner who is seeking possession, the problem identified by Waller LJ [in the Court of Appeal] does not arise. The fate of every possession application will be determined by the respective contractual and proprietary rights of the parties. Article 8 can never constitute an answer."
"As to the right to respect for home life provided by Article 8 of the Convention, its progenitor is article 12 of the Universal Declaration [of Human Rights, 1948] which says that "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence…." Neither this language, nor the language of Article 8 can, in my opinion, be read as authorising any deprivation of the property rights of others."
Article 17 of the International Covenant on Civil and Political Rights (1966), ratified by the United Kingdom in 1976, provides that "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…" Thus the wording of the international instruments is consistent though the word "unlawful", which does not require analysis for present purposes, has been added in the Covenant.
"… to hold that Article 8 can vest property rights in the tenant and diminish the landlord's contractual and property rights, would be to attribute to Article 8 an effect that it was never intend to have. Article 8 was intended to deal with the arbitrary intrusion by State or public authorities into a citizen's whole life. It was not intended to operate as an amendment or improvement of whatever social housing legislation the signatory State had chosen to enact. There is nothing in Strasbourg case law to suggest the contrary. "
"I believe that the key to a proper understanding of the issues in this case lies in an appreciation of the fact that Article 8 regards a person's home as an aspect of his right to privacy. The interpretation which I would give to the concept of a person's home in this context is broad enough to give a full measure of protection in a wide range of circumstances that may be envisaged where a person's right to respect for his home is interfered with by the public authorities. The issue which arises in this case is, by way of contrast, a very narrow one which has much more to do with the law relating to property rights than respect for a person's privacy."
"…Article 8(1) does not give a right to a home, but only to "respect" for the home. This meaning of "respect" for the home cannot be understood in isolation; it can be understood only if Article 8(1) is read together with Article 8(2). This forbids interference with the right conferred by Article 8(1) except in the circumstances specified. By explaining the circumstances in which there may be lawful interference with the right to "respect", Article 8(2) gives meaning to that concept and limits the scope of the Article."
Having referred to Article 8(2), Lord Millett stated, at paragraph 102:
"Consideration of the question whether interference with the right is "necessary for the protection of the rights and freedoms of others" may also call for a balance to be struck, but it need not do so. A person's right to respect for his home includes his right to listen to music, but not to music so loud that it disturbs his neighbour's sleep at 3.00am. Our ordinary law of nuisance requires the court to conduct a balancing exercise between the competing rights of neighbours to enjoy their respective properties. By carrying out that exercise the court will inevitably be concluding, whether consciously or not, whether its interference with one party's right to respect for his home is necessary to protect his neighbour's rights and freedoms. Provided that it carries out the exercise properly and in accordance with the ordinary law, there is no need to give separate consideration to Article 8."
(a) Article 8 is concerned to prevent intrusions into a person's private life and home and, in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered.
(b) Respect for the home has an environmental dimension in that the law must offer protection to the environment of the home.
(c) Not every loss of amenity involves a breach of Article 8(1). The degree of seriousness required to trigger lack of respect for the home will depend on the circumstances but it must be substantial.
(d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded.
(e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article.
(f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered.
(g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8.
(h) The margin of appreciation may be wide when the implementation of planning policies is to be considered.
"Domestic courts must themselves form a judgment as to whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment)…"
Lord Justice Keene:
Lord Justice Scott Baker: