England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		20 March 2003

1. MR JUSTICE ELIAS: This is an application under section 288 of the Town and Country Planning Act 1990 (the 1990 Act). The claimants wish to quash the decision of the Secretary of State's inspector contained in a decision letter dated 9 August 2002. By that letter the inspector rejected an appeal heard on the papers made pursuant to section 78 of the 1990 Act against a refusal to grant planning permission under section 73A(2)(c) of the 1990 Act. The application related to a development which had already been carried out. It was for the removal of a condition which had been annexed to an earlier planning permission which had been granted in 1993. In that year, outline planning permission had been granted to the claimants for the erection of a new dwelling on the land then owned by them in the hamlet of Shearston, which is situated in the open countryside between Taunton and Bridgewater. A condition, condition 2, is attached to that planning permission and it required the existing bungalow, called Longacre, in which they lived, to be demolished within one month of the new dwelling becoming available for occupation. They subsequently sold the part of the land to which planning permission was attached. A new dwelling was built, but their bungalow was not demolished as condition 2 required. Accordingly, the planning authority issued an enforcement notice. An appeal against the notice pursuant to section 174 of the 1990 Act failed, save that the time limit for compliance was extended until 12 July 2001. Enforcement has now been suspended pending the determination of this application for planning permission.

The background

2. A more detailed account of the circumstances in which condition 2 was imposed in the 1993 outlined planning consent is contained in the Inspector's decision. Paragraphs 5 to 8 are as follows:

"5. The planning history associated with the appeal property is a complex one and it includes two previous appeal decisions. Planning permission for the bungalow was granted in April 1959 and I understand that the building was erected some time during the early 1960s.  The appellants, Mr and Mrs Gosbee, purchased the dwelling in 1917 together with an adjoining orchard to the north-east and over the next 20 years submitted a number of planning applications to the council for the development of their land. The appellant's main concern was that the existing bungalow was too small for their needs and they wished to erect a new dwelling on the adjoining orchard land.

"6. This proposal was strongly resisted by the authority and indeed between the years 1989 to 1992 three separate applications for the demolition of the existing bungalow and its replacement with a new dwelling on the orchard land was refused planning permission. At that time the council pointed out that there were no local planning policies that referred to replacement dwellings in the countryside.

"7. However in September 1992 the policy background changed with the approval of the Somerset Structure Plan. Policy H5 of this document referred specifically to replacement dwellings in rural areas and indicated that such proposals would be permitted provided that the new dwelling was on the same site as its pre-placement and that there was no overall increase in the number of dwelling units. It was against that background that the council considered a fourth planning application made by Mr and Mrs Gosbee which again proposed the replacement of their bungalow with a new dwelling on the adjoining orchard land, which at the time still remained in their ownership. The appellants claimed that it was not practical or feasible to build a new dwelling on the same site as the existing bungalow because of its restricted curtilage and that they wished to live further away from the unpleasant odour of the nearby riding stables and the farmer's slurry cart.

"8. After careful consideration the council accepted the appellants' arguments and granted the planning permission for this development in April 1993 but imposed the condition the subject of this appeal that requires the demolition of the existing bungalow within one month of the date of occupation of the new dwelling.

3. In 1994 the claimants sold that part of the land which had the benefit of the 1993 outline consent to Mr and Mrs Sampson. It was sold for £56,000. Clause 12 of the contract for sale required the sellers to comply with condition 2 of the 1993 outline consent. It provided that in default of such compliance the purchases could enter the property retained by the claimants and secure compliance with condition 2 whilst recovering the cost of doing so for the claimants and - "provided the compliance with this condition shall still be required by the relevant planning authority on the relevant date". The purchasers built a dwelling on the site they had acquired and occupied it from August 1999. That property is known as Little Acre. It was following this, on 21 February 2000, that the enforcement notice was issued requiring demolition of Longacre. It is also relevant to note that on the part of the land retained by the claimants there is a barn. This barn benefited from a planning permission granted in 1988 for a change of use to a residential dwelling. However, that permission was not implemented. The 1988 planning permission was due to expire on 19 July 1993, but in May 1993 the claimants made a further application for a change of use to a residential dwelling and that was granted for a further 5 years on 24 June 1993. That permission however has since lapsed without any steps having been taken to convert the barn.

The Decision of the Inspector

4. The inspector set out the planning policy background in paragraph 2 of his decision in the following terms:

"2. The approved Somerset and Exmoor Nation Park Structure Plan, together with the adopted Bridgewater Area Local Plan and emerging Sedgemoor District Local Plan all cover this area. All three plans generally seek to protect the countryside for its own sake and resist the erection of new dwellings outside of certain defined settlements (policies STR 3 and STR 6). The hamlet of Shearston is not identified in the adopted local plan as a settlement where further growth may be permitted and therefore for the purposes of the Development Plan it is subject to the above countryside policies. I note however that the emerging District Local Plan allows for replacement dwellings in the countryside but this requires amongst other things that the number of dwelling units on site should not increase (policy H41).

5. The inspector then identified two main issues. The first was whether the condition 2 was properly imposed in the first instance; the second was whether its removal would undermine the local planning policy objectives for the rural area in which Longacre was situated. It is common ground that this was the correct approach to a section 73A application.
6. As to the first issue, the inspector concluded that the imposition of condition 2 was fully in line with the local planning policies. After referring to the decision of the council to impose condition 2, the inspector continued as follows:

"In my opinion this was a sound approach and it is fully in line with local planning policies. Indeed paragraph 2.09 of the adopted local plan states amongst other things that 'small groups of dwellings and farmsteads occur throughout the plan area and in most cases these small hamlets have no services and have changed little over the years. To permit further development in such locations would be to permit radical and irreversible change to their character and consequently the council will enforce the provisions of policies H5 and C4 which seek to restrict most forms of development outside the defined limits of settlements'."

"I fully endorse these comments and indeed without conditions of the type imposed in this case the planning system could be abused leading to proliferation of new dwellings in the open countryside and resulting in serious harm to the rural character of this area. I therefore conclude that the imposition of this condition was entirely appropriate and reasonable in the circumstances."

7. The inspector also held in relation to the second issue that the proposed planning permission would seriously undermine both national and local planning policies. He set out his reasons as follows:

"12. I accept that the existing bungalow has been here for many years. However the whole approach of the planning permission granted in 1993 was that the replacement dwelling was to be constructed on a one for one basis. If condition 2 were to be relaxed there would in effect be an additional dwelling built with the somewhat remote location that consolidates the existing sporadic development and seriously harms the character and experience of this attractive rural area. I also share the council's concerns about the sustainability of this development. Shearston has no facilities whatsoever and to reach the shopping, education, social and employment opportunities, local residents are highly dependant on the private motor car. Any further dwellings in this hamlet would therefore represent a most unsustainable form of development that would seriously conflict with the government's aims as set out in PPG3 and 13.

"13. Reference has been made to the barn on the site and the appellants point out that when the 1993 planning permission was granted this building had permission for conversion into a separate dwelling and thus there was a potential for up to three dwellings on this site. However, they have offered to either demolish the barn or enter into an agreement to restrict its future development in order to overcome any concerns with overdevelopment.

"14. I have carefully considered these arguments but I would observe at the outset that the planning permission for the conversion of the barn has now lapsed and consequently there is no planning commitment for any further dwellings on this site. Indeed the conversion of this building to a dwelling would require planning permission and the council has indicated that because of a change in both national and local planning policies such a proposal would now be strongly resisted. Moreover, it seems to me that the questions about the overdevelopment of this site are not directly relevant to the issues before me. It is the principle of allowing any further housing development in this small hamlet that needs to be considered and I have already concluded that such proposals would seriously undermine both national and local planning policies."

8. Finally he dealt with an issue that had been raised under the Human Rights Act. It was contended before the inspector, and is repeated before me, that the refusal to grant permission would involve an interference with the claimants' home and family life under Article 8 of the European Convention on Human Rights. It has also been asserted before me, but not expressly before the inspector, that the decision infringes the claimants' rights to property under Article 1 of protocol 1. In fact no separate submissions were made to me under the latter provision. Miss Busch, counsel for the claimant, realistically accepted that this could not, in this case, add anything to the Article 8 argument, if indeed it went as far as that provision. Accordingly I only have to deal with the Article 8 submissions. The basis of the contention is that the claimants would lose their home if the conditions were allowed to remain in force, and it is said that they do not have the finances to purchase another. The inspector dealt with the human rights arguments at paragraphs 15 and 16 of his decision in the follow terms:

"Finally I note the references to the human rights legislation and I am of course aware that there is a valued enforcement notice that requires the demolition of Longacre. Thus dismissal of this appeal would result in an interference with the appellant's private and family life and indeed it is likely to result in the loss of their home. However it seems to me that Mr and Mrs Gosbee are to some extent the authors of their own misfortune. When they sold the orchard land (which included the plot for the replacement dwelling) they must have realised they were placing their existing bungalow in jeopardy. In fact clause 12 of the contract of sale signed by the appellants required Mr and Mrs Gosbee to comply with condition No 2 of the 1993 permission. In default, the clause allowed the buyers to enter the land, comply with the condition and recover the costs of doing so from the sellers. All this information is clearly recorded in paragraph 7 of the December 1997 appeal decision letter.

"16. Moreover, interference with the appellants' rights must be balanced against the general interest, which includes the preservation of the environment in the interests of the community. The planning objections to allowing the bungalow to remain on this site are serious ones and in my opinion the general interest can only be safeguarded by retaining this condition. I therefore consider that the refusal of planning permission in this case is not disproportionate, nor does it result in a violation of the appellants' rights under Article 8."

The Grounds of Challenge

9. The claimants now contend that the inspector has erred in law in numerous ways. Some of these grounds have been added since the original application to this court and leave is necessary for them to be advanced now. I put it in this somewhat broad way because it is a matter of some dispute whether some of the fresh grounds are really implicit in the original grounds or not. There is an objection to my allowing an amendment on the basis that the fresh grounds, or at least some of them, raise issues that were not advanced before the inspector. However Mr Maurici, counsel for the Secretary of State, accepts that the question of whether or not permission to amend should be given is linked with the merits of the points now being advanced by the claimants. Accordingly, I will first look at the grounds as if I have granted leave and then come back to the question of permission once I have dealt with the merits. Some of the grounds overlap and I will deal with them in what I hope is a logical form without specifically taking each ground in turn as it was advanced before me in argument.

Ground 1: failure to take into account the planning history or reach a proper conclusion in the light of that history.

10. The claimants submit that the inspector ought to have focused on the question of whether it was "necessary" to impose condition 2 in the sense that planning permission would not have to be refused if it were not imposed. They refer to a DA circular 11/95 and in particular to the following sentence at paragraph 25:

"It may even be justifiable to require by condition that an existing building be demolished -- perhaps where to have both would result in the site being over-intensively developed."

11. The claimants submit that when the condition was imposed it was envisaged that there might be two buildings, at least, on the claimants' site: namely the bungalow and the barn, which could have been converted into residential property had the planning permission granted for that purpose been implemented. Accordingly, the claimants submit that it would have been appropriate for condition 2 to have permitted the bungalow to remain, but to have required the claimants either voluntarily to agree to the revocation of planning permission with respect to the barn, or perhaps even to demolish it. The contention is that the Authority were always willing to have two houses on the site and it was a matter of indifference, or ought to have been a matter of indifference, which they were. If the new property was built, it could have been either the bungalow or the barn which had to be demolished, and the condition ought not to have been framed so as to require that it should be the former. There are two distinct submissions with respect to this argument -- the first is that it was not considered at all by the inspector; the second is that alternatively the inspector ought to have concluded that the condition was not necessary given this feature of the planning history. By the end of her submissions, I think it is fair to say that Miss Busch was focusing on the first rather than the second aspect, but both elements were advanced. The Secretary of State contends that both arguments are misconceived. Mr Maurici says that the inspector plainly considered the point. It was at the forefront of the claimants' submissions. The inspector explained that the council had exceptionally permitted a departure from the normal policy; that any new dwelling on this site should have been on the same site as its replacement, but because of the unpleasant odour from the riding stables and the slurry next door, the council permitted the new house to be built elsewhere on the site. Mr Maurici submitted that the inspector had concluded that this condition, linked to that planning permission, was wholly in line with planning policies; it was fairly and reasonably related to the proposed development. That was a conclusion of the inspector which was a matter of planning judgment. Moreover, the inspector had said in terms that he did not think that the question of overdevelopment was directly an issue at all. Mr Maurici further contends that the inspector was plainly right to conclude that permitting the bungalow to remain would involve a breach of the relevant planning policy. The claimants had always misrepresented the nature of the issue before the inspector. What they were seeking in 1993 was a replacement dwelling, but not on the site of their bungalow. They were not seeking a replacement for the barn or bungalow and would not have been given planning permission on that basis. The current relevant policy is set out in policy H41 of the Sedgemoor Local District Plan. Policy H41 is as follows:

"The demolition and replacement of an existing dwelling in the countryside which has been occupied in recent years and not become abandoned will not be permitted unless the proposal:

A) is similar in form and massing compared to the original building and impact on its surroundings;

B) does not increase the number of dwelling units on site; and

C) is of a design which is sympathetic in scale, materials and architectural details to the established building tradition of the locality."

12. Plainly, if the new house were to be replaced by the barn, which was not in any event an existing dwelling, then it would need to be similar in mass and form to the barn and not to the bungalow. It is not clear precisely whether this policy was in force in 1993, but even if it was not, it is clear from the terms of the planning permission then granted that the site was considered too small to accommodate two dwellings if they were the new property and the bungalow. It would have been inconsistent with the relevant policies to assume that it was a matter of indifference whether the barn or bungalow should be used for residential purposes. The former was smaller and was of a different design and style. Moreover, the planning permission in respect of it clearly envisaged that what was being permitted was a mere conversion without any additions or extensions. There was obviously going to be a difference between allowing two houses on the site and one house in the barn, even if the barn was converted into a residential dwelling. Mr Maurici also observed that the conversion of the barn to a dwelling would not have had the same impact on the countryside as the creation of a new dwelling on a different and greenfield site. In my judgment, Mr Maurici is correct in his analysis. Reading the letter as a whole, I am satisfied that the inspector clearly understood and rejected this submission of the claimants. He was fully entitled to do so. It was a matter of planning judgment whether or not it was considered necessary to require the existing bungalow to be removed as a condition of the planning permission. It was entirely in accordance with planning policy that such a condition should be imposed. Indeed the new dwelling would normally be required to be built as a substitute for the existing one. In my judgment, the inspector properly approached this issue and reached a conclusion that was fully justified in the light of planning policies in force.

Ground two: condition 2 is not now reasonable.

13. It is common ground that it is unlawful to impose a planning condition which is not reasonable. The claimants submit, and again it is not disputed, that it would not be reasonable if it cannot be enforced in the sense that a person liable to be served with an enforcement notice cannot reasonably be expected to have to comply with it. The principle is accepted by Sullivan J in R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74:

"In my view, paragraph 28 of the Annex to Circular 11/35 is correct in considering enforceability, not on the basis of what is theoretically possible under section 172(2) of the Act, but on the basis of whether the person served with the Enforcement Notice can reasonably be expected to have to comply with it. In the example given in paragraph 28, it is inconceivable that the landowner who had derived no benefit from the development, and might well have vigorously opposed it, would be required to comply with an Enforcement Notice. Requiring him to do so would amount to the expropriation of his land without compensation. A condition which is not reasonably enforceable is not a reasonable condition for the purpose of the Newbury test: see Newbury District Council v Secretary of State for the Environment [1981] AC 578."

14. Miss Busch submitted that paragraph 25 of Circular 11/95, to which I made reference, demonstrates how unreasonable it is to impose a condition of this kind save in the most exceptional circumstances. She contends that following the sale of the site in 1994, it then came under the control of the purchasers, the Sampsons, who were in effect the applicants for planning permission thereafter, and the claimants were in a position equivalent to that of a third party to the planning application. Miss Busch submitted that two questions then arise: first, do the purchasers retain sufficient control of the claimants' site to render condition 2 enforceable? Second, does it remain reasonable in the circumstances to require the claimants themselves to comply with condition 2? In my view, this argument singularly lacks merit and I think it is wrong in law. Clause 12 of the contract of sale plainly gives the purchasers sufficient control to secure compliance and it would not be unreasonable to require them to do so since it was always a condition of the planning permission. In the event, they have not in fact been required to comply. Further, in my view, it simply is unrealistic -- indeed, I would go so far as to say absurd -- to treat the claimants as innocent third parties such as is referred to by Sullivan J in the passage I have quoted from the decision in Tew. The claimants have by their own act created such difficulties as have arisen. The only reason they are being required to destroy their own home with no alternative accommodation on the site is that they chose to sell the land and permit someone else to take advantage of the planning permission attached to it. They have benefited financially from obtaining this planning permission, in the sense that it has plainly increased the value of the site, and they are now seeking to avoid one of the conditions, and in the view of the authority, a crucial condition pertaining to that planning permission. The inspector was fully entitled to conclude that the claimants were to some extent the authors of their own misfortune. It was submitted by Miss Busch that the claimants understood on professional advice that they would be able to avoid the effect of condition 2 by agreeing not to develop the barn. If they did believe that they were not entitled to do so, at the very least they must have realised that there was some risk inherent in selling in that way. As I have indicated, it was a term of the contract conveying the land to the Sampsons that the purchasers would be entitled to enforce this condition even if the claimants did not do so. This is nothing like the situation envisaged by Sullivan J in the Tew case and I reject the argument that an otherwise reasonable condition was transmuted into an unreasonable one at the point at which land was voluntarily conveyed for good consideration.

Ground three: other relevant matters allegedly not considered.

15. The claimants allege that there are a range of other matters which were not considered by the inspector. One of these was the planning history of the site, but Miss Busch realistically accepted that this did not in substance add anything relating to the argument, which I have rejected, relating to the barn as an alternative building to demolish. Two other matters also said not to be considered were what is termed the "fall-back" position and the value of the dwelling house. As to the former, it is said that the inspector ought to have considered what would have happened to the site if Longacre were demolished. It was suggested that the barn would remain empty and be subject to vandalism and dereliction and that accordingly it was more prudent to retain the house. As to the latter, it is suggested the inspector ought to have considered the benefit to the public of retaining the house. In appropriate cases both these matters may be material considerations for an inspector to consider: see PF Ahern (London) Ltd v Secretary of State for the Environment and Havering Borough Council [1998] JPL 351, as to the fall-back position, and Tonbridge and Malling District Council v Secretary of State for the Environment [1981] JPL 757, which recognises that conserving scarce resources can be a material planning consideration.
16. However, I reject the submissions that in this case the inspector should have given them any material weight or that he was obliged to refer to them in his decision even if he did expressly consider them. Neither of these considerations were urged upon the inspector, nor was there any specific evidence put before him about them. Indeed, as to the latter, the benefit of retaining houses is plainly considered as part of the planning policies themselves which the inspector fully addressed. The planning policies in this case for sites of this nature put a higher premium on the need to protect the environment even if that means a demolition of property. In the circumstances it is hardly surprising that the inspector did not specifically refer to these matters nor, in my view, is it conceivably a matter of criticism that he failed to do so. Another submission was that the inspector did not consider the personal circumstances of the claimants. He plainly did so as paragraph 15 of his decision makes clear. If this submission has any weight it is in the context of the human rights challenge to which I return.
17. Finally it is said that the inspector erred in law in that he commented at paragraph 10 of his decision that without a condition of this kind, the planning system would be open to abuse, but did not have any evidence to that effect. It is said that any such concerns must be legitimate and based on cogent evidence: see Poundstretcher v Secretary of State for the Environment [1988] 3 PLR 69; applied in Rumsey v Secretary of State for the Environment, Transport and the Regions [2001] JPL 1056. In my view, this is a misreading of the principle referred to in the Poundstretcher case. Such evidence is not required where the potential precedent effect is obvious or -- and this is really the same thing -- the case concerns a planning application which many would welcome the opportunity to make and which an experienced inspector would be aware would be likely to lead to an abuse or an undermining of the planning policies. This was made plain in the Poundstretcher case itself. In the course of giving judgment, David Widdicombe QC, sitting as a Deputy High Court Judge, said this:

"I accept Mr Hobson's proposition that where a precedent is relied on mere fear or generalised concern is not enough. There must be evidence in one form or another for a reliance on precedent. In some cases the facts may speak for themselves, for instance in the common case of the rear extension of one of a row or terrace of dwellings it may be obvious that other owners in the row are likely to want extensions if one is permitted. Another clear example is sporadic development in the countryside."

18. Plainly the potential abuse identified by the inspector in this case fell into the category of a case which speaks for itself. It follows that I reject all the new ways in which the claimant makes this challenge. In the circumstances it is not proper to debate at length which grounds are strictly fresh grounds and whether it is right in principle to give consent to the amendment to the grounds. In Newsmith Stainless Steel Ltd v Secretary of State for the Environment, Sulli van J observed that it would not usually be appropriate for new arguments to be raised that had not been advanced before the inspector if this involved some further findings of fact and/or planning judgment (see paragraph 16). In my view, the new arguments I have so far addressed do not fall into either category. They have raised matters which I felt able to determine on the decision as it stands. Accordingly, I would give leave to amend, but reject each of the grounds. Of course as I have indicated, the failure to raise some of these points before the inspector is material when considering an argument that he failed to address a particular issue in his decision. It significantly weakens the strength of any such argument, but that does not of itself constitute a basis for refusing permission to amend.
19. Ground 4: Article 8.
20. Article 8 is as follows:

"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."

21. It is common ground that the requirement imposed on the claimants to demolish their house involves an interference with their Article 8(1) rights. The question is whether the interference can be justified under Article 8(2) as a proportionate response to protect a legitimate public interest -- in this case the environmental interest of the public. Two issues arise for consideration before analysing the particular arguments advanced under this head. The first is the role of the court when reviewing human rights issues in the context of a section 288 appeal. The second is the way in which the test of proportionality should be assessed.

The Role of the Court

22. In this case the decision as to whether the claimant's Article 8 rights have been infringed is in the first instance for the inspector. The courts however have a duty to review that decision. The intensity of that review, when the courts are exercising their supervisory functions whether by judicial review or pursuant to an appeal, varies with the subject matter: see the observations of Lord Steyn and Lord Cooke of Thorndon in R(Daly) v Secretary of State for the Home Department [2001] 2 WLR 1389 at paragraphs 28 and 32. Intensity also varies with the extent to which there is an interference with a fundamental right. In the context of planning law it is not for the courts exercising their supervisory functions to substitute their views on questions of proportionality. They must give due deference to the decisions of the inspectors and the Secretary of State. I would respectfully agree with the conclusions of Sullivan J on this point in Buckland and Boswell v Secretary of State for the Environment, Transport and the Regions [2001] 4 PLR 34. After referring to the well-known decision of the House of Lords in R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment Transport and the Regions [2001] 2 WLR 1389, and the decision of the European Court of Human Rights in Chapman v United Kingdom (2728/95), the judge continued as follows:

"54. The planning inquiry process ensures that arguments as to whether there really is a pressing social need and whether a refusal would be proportionate can all be addressed in detail in an appropriate forum. The fact that some policies are expressed in a restrictive manner, for example policies relating to development in the green belt, so that the appellant is in effect required to put forward an exceptional case in order to obtain planning permission, does not mean that Article 8 is infringed. Green belt boundaries are defined in development plans. The elaborate procedures for adopting development plans, including opportunities to make objections and representations, are sufficient to ensure that full account is taken of conflicting social needs when policies are being framed. Development is severely restricted in green belts because it has been concluded that there is, in general (subject to exceptional circumstances in any particular case), a 'pressing social need' for such controls in those particular areas as defined through the development plan process.

"55. Thus, there is no conflict between Article 8 and the inspector's conventional green belt approach to this case. The question is not whether the word 'proportionality' was mentioned in the decision letter, but whether the inspector in fact carried out a balancing exercise between 'the general laws intended to safeguard assets common to the whole society, such as the environment' and paying 'due respect to the interests safeguarded to the individual by Article 8' (see paragraphs 92 and 96 of Chapman).

"56. It is clear from the passages in the decision letter which I have set out above that this inspector carried out that exercise with some care. I have no hesitation in rejecting the submission that this court should satisfy itself that the right balance has been struck by the inspector. That would be to embark on a merits review. In paragraph 92 of its judgment in Chapman, the European Court of Human Rights said this:

'The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because planning inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the court to weigh the arguments'."

"57. Although the court was there concerned with its own power to review decisions in the planning field made by national authorities, much the same arguments apply to the High Court's ability to review inspectors' decisions. The court does not visit the site; it is not familiar with many of the policy considerations that will be relevant; it does not hear evidence. There may be greater scope for 'a proportionality approach' in other contexts, such as prisoners' rights. When dealing with the alleged violation of Article 6 of the Convention, the European Court of Human Rights in Chapman considered the limitations on the right of appeal to the High Court in a planning case:

'122. The applicant argued that the court's case law did not support any general proposition that the right of appeal to the High Court on points of law rendered planning procedures in compliance with art 6. The case of Bryan v UK [1995] ECHR 19178/91 at paras 44-47 was, she submitted, decided on its particular facts. In particular, she argued that the High Court could not review any questions of fact. Nor could it examine complaints that a planning inspector gave too little weight to the needs of the gipsy family in pursuing their lifestyle on their land as long as he did not expressly disregard it as irrelevant factor. She also submitted that a review which failed to take account of the proportionality of a measure must be inadequate for the purpose of art 6 (referring, mutatis mutandis, to the court's findings on art 13 in Smith v UK [1999] ECHR 33985/96, (2000) 19 EHRR 493, at paras 135-138).

123. The government, agreeing with the majority of the Commission, considered that in light of Bryan v UK [1995] ECHR 19178/91 the scope of review provided by the Hight Court concerning planning decisions satisfied the requirements of art 6, notwithstanding that the court would not revisit the facts of the case.

124. The court recalls that in the case of Bryan v UK [1995] ECHR 19178/91 at paras 34-47 it held that in the specialised area of town planning law full review of the facts may not be required by art 6 of the convention. It finds in this case that the scope of review of the High Court, which was available to the applicant after a public procedure before an inspector, was sufficient in this case to comply with art 6(1). It enabled a decision to be challenged on the basis that it was perverse, irrational, had no basis on the evidence or had been made with reference to irrelevant factors or without regard to relevant factors. This may be regarded as affording adequate judicial control of the administrative decisions in issue.

125. There has therefore been no violation of art 6(1) in this case'."

23. The same judge adopted a similar approach in the case of R(Egan) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 389 (Admin), see paragraphs 48 to 51. However it is the duty of the court to be satisfied that the inspector has given careful consideration -- anxious scrutiny is the term frequently used -- to ensure that the relevant considerations bearing on the human rights issues have been properly weighed. Questions of proportionality are highly facts sensitive and it is necessary that there should be an intense scrutiny of the material facts in order for the balancing exercise imposed by Article 8 to be carried out: see the observations of Buxton LJ in Clarke v Secretary of State for the Environment, Transport and the Regions [2002] EWCA Civ 819, paragraph 16.

The Proportionality Test

24. Furthermore in determining whether the interference is proportionate both parties accept, and I agree in this case, that the court should adopt the twofold test adumbrated by Dyson LJ in the case of R(Samaroo) v Secretary of State for the Home Department [2001] UKHRR 1150. In the course of giving judgment his Lordship said this at paragraph 19

" . . .  that in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights . . . 

"20. At the second stage it is assumed that the means employed to achieve a legitimate aim are necessary in the sense that they are the least intrusive 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?"

25. In other words, even where the particular form of interference is the least necessary required to achieve a legitimate public objective it may nonetheless involve an infringement of Convention rights to seek to achieve the objective at all. The cost in terms of human rights may simply be too high.

The Submissions in this Case

26. For the purposes of this argument it is assumed that the decision is lawful in the sense that it is otherwise in accordance with domestic law considered independently of Article 8. If it is not, then it is unnecessary to consider Article 8 at all. The claimants realistically accept that the objectives identified in planning policies constitute pressing social needs. The claimants do not dispute that the requirement that they should demolish their property properly gives effect to planning policy. The question is whether it is the least intrusive step necessary to achieve that objective or whether, even if it is the least intrusive step, it constitutes an unacceptable interference with their Article 8 rights. As to the former issue, it is submitted that in this case the imposition of condition 2 is not the least intrusive step. First the claimants here repeat the contention that the planning authority could have achieved its objective by denying any planning permission to convert the barn into residential accommodation as an alternative to requiring the demolition of the bungalow. I have already considered and rejected that argument and I will not say any more about it here. Second, and more relevantly, it is submitted that the inspector could have varied the condition so as to defer the obligation to demolish the property for a certain period such as perhaps until the death of the claimants. This was not a submission advanced before the inspector nor indeed was it raised in the grounds of appeal. If correct, it imposes a duty on the inspector to consider the possibility of imposing a condition or, as in this case, varying one of his or her own motion. Miss Busch submits that this is a consequence of the obligation imposed by section 6 of the Human Rights Act to give effect to the claimant's human rights. I reject this submission. The Human Rights Act does not require an inspector effectively to advance and then assess submissions which a party might have pursued but has not done. There are a number of authorities which establish this to be the position prior to the Human Rights Act. In Top Deck Holdings v Secretary of State for the Environment [1991] JPL 961 Mann LJ, with whose judgment Dillon LJ and Beldam LJ agreed, commented that: "an inspector should not have imposed upon him an obligation to cast about for the conditions not suggested before him." The court also agreed with an earlier decision of Forbes J in Mary Findlay v Secretary of State for the Environment [1983] JPL 802 to like effect. These decision were followed by Silber J in R(Leslie Ayres) v Secretary of State for the Environment [2002] EWHL 295 (Admin). In that case the inspector had refused permission for the development of the site for two mobile homes for gypsies and a touring caravan. The claim before the inspector had been that the development should be permitted for the life of those in the family group. Since one of the children was only 8 this would have been a very extensive period. It was submitted that even following the rejection of that particular contention, the inspector ought to have gone on to consider whether a shorter period, such as 5 years, would have been appropriate given in the particular case particular personal difficulties relating to certain members of a family group. It was submitted that the proper protection of the human rights in that case required a permission conferred for a period of some such length. Silber J rejected the argument and submitted that even in a human rights case there was no obligation on the inspector to consider conditions which had not been suggested to him. It may be that exceptionally, where the possibility of some such condition has been raised before the inspector, but not specifically adopted by a party, he may be criticised for not considering the possibility that such a condition may be imposed. This may be so in particular if the party seeking planning permission is not represented.
27. In Brightwell v Secretary of State for the Environment [1997] CMPR 418, Lord Woolf indicated that an inspector might, in such circumstances, be open to criticism if he fails to have regard to possible conditions. Even then however Lord Woolf said that he would not on this ground have interfered with a decision of the judge, but it was not an error of law for the inspector not to specifically address the issue. That case was of course prior to the Human Rights Act, but I do not accept that the Act has fundamentally altered the obligations of an inspector in this regard. This is consistent with the principle that there is no obligation for an inspector to carry out investigations or inquiries, such as to ensure that all relevant material that might assist an applicant in a human rights claim is before him: see Matthews v Secretary of State for the Environment Transport and the Regions [2001] EWCH (Admin) 815, per Sullivan J. As the learned judge said, the inspector is simply required to deal with the case advanced before him. Accordingly, I reject the submission that the inspector ought to have considered the less intrusive condition -- that was never put to him by anyone. In any event, it is not clear that it would have been capable of achieving the objectives of a planning policy. An alternative ground pursued by the claimants was that the inspector wrongly balanced the relevant factors when determining the question of proportionality. It is said that had he properly analysed the factors he must have concluded that the impact on the claimants was disproportionate to the public benefit obtained. Again I reject that submission. It seems to me that that was essentially a matter for the inspector. Even on what is sometimes termed a "super Wednesbury" consideration of his decision, in my view, he was plainly entitled to find that there was not wrongful interference of Article 8 rights.
28. Two further interrelated arguments were advanced in the course of the oral submissions although they did not figure in the written grounds. The first is the contention that the inspector did not address the second question enunciated in the Samaroo case at all. Miss Busch submits that in substance the inspector merely asked whether the first question was satisfied; that is, whether the intervention was the least intrusive to achieve planning objectives. It is said that he never did focus on the issue of whether there was nonetheless a disproportionate impact on the claimants' Article 8 rights. A related argument is that the inspector did not carry out the necessary anxious scrutiny of this issue. It is alleged that his analysis of the impact on the claimants was cursory and inadequate. In order to analyse these arguments it is pertinent to note how the case was put to the inspector on this point. It must of course be remembered that he determined the appeal on the papers and there was no oral evidence. The statement of grounds on behalf of the claimants made the point that the claimants would lose their house which they lived in for 30 years with no financial recompense, that they had no alternative accommodation, and would be in financial difficulties, although no details of that were provided. It was also stated that the loss of the house was causing them grave anxiety and distress.
29. The issues are set out in greater detail before me in a witness statement from Mrs Gosbee, but this was not before the inspector and of course it cannot be relevant to testing the validity of his decision. In truth, most of the factors identified in the written statement would have been plain to the inspector although not necessarily the financial circumstances. In addition to these matters, the documents before the inspector referred to the fact that Mr Gosbee had retired early and was in poor health. The inspector did not specifically refer to each of these factors, but he obviously appreciated that the claimants would lose their home -- that would have been plain, as would the fact that they would receive no compensation and that it would be likely to cause them distress. The inspector pointed out that they had brought this misfortune on themselves. Miss Busch submits that that is an irrelevant consideration. I do not accept that. As Mr Maurici pointed out, there are a number of cases where the European Court of Human Rights has taken the view that it is a material fact in a proportionality analysis that the claimant has deliberately chosen to take a risk in the knowledge that his rights might be adversely affected: see the cases referred to in the book, Human Rights Practice by Emmerson and Simor at paragraphs 15056 and 15057. The point is not of course to be decisive, but it is, in my view, capable of being a material consideration, and the inspector was fully entitled to take it into account.
30. Miss Busch also submits that there was an onus on the inspector to carry out further investigations or inquiries to be more fully informed of these personal factors. I do not accept that and it seems to me to be inconsistent with the view adopted by Sullivan J in the Matthews case, to which I made reference, to which I would agree. I accept that in this case the inspector has not in terms disentangled the two questions referred to in the Samaroo decision, but the key issue, as Sullivan J noted in the Buckland case, is whether the proper balancing of factors has taken place. This must be judged reading the decision fairly and sensibly. Sir Thomas Bingham MR said in Clarke Homes Limited v Secretary of State for the Environment and Staffordshire District Council [1993] 66 PCR 263 at 271 to 272, that there must be genuine as opposed to merely forensic doubts as to whether the question has been raised and answered. It is clear that the inspector appreciated that he had to balance the interests of the claimants against the wider general interest; indeed he said so in terms. He took the view that planning objections were serious, that nothing short of retaining the condition would protect them, and given in particular the self induced nature of the interference, there was no violation of Article rights. I think he was entitled to reach that view.
31. I have carefully considered this issue, I recognise that the decision is not as detailed on this point as it might be, but it seems to me that the fundamental concerns of the claimants here would have been plain to the inspector. He would have recognised that a significant human right is at stake and plainly did so.
32. 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. One can only have sympathy for the very real dilemma in which the claimants now find themselves. The fact that it was in large part self-induced does not, I recognise, soften the blow, nor the adverse impact of this decision on their lives. But in my view the decision was one which the inspector was fully entitled to reach, and accordingly, the appeal is dismissed.
33. MR MAURICI: My Lord, in addition to dismissing the application, I ask for an order that the claimants pay the Secretary of States costs. My Lord, I understand that is not disputed. It is also not disputed that the matter should go to a detailed assessment if it is not agreed, this case having lasted longer than one day. So my Lord, I would ask for an order in those terms.
34. MR JUSTICE ELIAS: Yes. Thank you both very much.