QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|(1) CRANAGE PARISH COUNCIL|
|(2) JAMES BENNION|
|(3) JOHN OAKLEY|
|(4) LILLIAN WORTHINGTON||(CLAIMANTS)|
|(1) FIRST SECRETARY OF STATE|
|(2) SECRETARY OF STATE FOR TRADE AND INDUSTRY|
|(3) SCOTTISH POWER UK PLC|
|(4) SCOTTISH POWER GAS LTD||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS N LIEVEN (instructed by the Treasury Solicitor) appeared on behalf of the FIRST & SECOND DEFENDANTS
MR W HICKS QC & MR N CAMERON (instructed by Zyda Law Solicitors, Nantwich) appeared on behalf of the THIRD & FOURTH DEFENDANTS
Crown Copyright ©
(1) First, he submits that the Secretaries of State failed to give proper regard to the development plan.
(2) Secondly, he submits that the Secretaries of State have failed adequately or at all to consider (a) the availability of alternative storage sites, other than salt cavity storage sites, to meet the generalised need identified; (b) the nature of the adverse impact of the proposed development on the character and appearance of the countryside; (c) the public's perception of the risk posed by this proposed development; (d) all of the relevant considerations cumulatively in the balancing exercise the Secretaries of State purported to identify.
(3) Thirdly, he submits that the Secretaries of State have failed to give sufficient, clear and intelligible reasons for their decision.
(4) Fourthly, he submits that the Secretaries of State have failed to give proper consideration to the human rights of the individuals affected, specifically by reference to Article 8 of the European Convention on Human Rights and Article 1 of the First Protocol to the Convention.
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
Section 70(2) provides as follows:
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
Regulation 7 of the Town and Country Planning (Development Plan) (England) Regulations 1999 requires that a local plan contains a reasoned justification of the policies formulated in the plan.
"It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision-taker. The development plan does not, even with the benefit of section 18A, have absolute authority ...
The presumption which section 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision-taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision-taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of section 18A was to increase the power of the court to intervene in decisions about planning control. That section, like section 26(1), is addressed primarily to the decision-taker. The function of the court is to see that the decision-taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan."
Lord Clyde said this in the course of his speech, reading from page 1458 of the report:
"Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it."
Lord Clyde went on to say this:
"Correspondingly the power of the court to intervene remains in principle the same as ever. That power is a power to challenge the validity of the decision ... Section 18A has not innovated upon the principle that the court is concerned only with the legality of the decision-making process. As Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759, 780:
'If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.'
In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of those considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed those considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.
Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in the light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate."
Submissions - First Issue
"Proposals for public service development within the open countryside, areas of special country value or areas of significant local environmental value will be allowed, where it can be shown that they are essential to:
(i) the maintenance of an existing service or undertaking;
(ii) an existing source of employment;
(iii) the provision of a new scheme or undertaking
and provided it does not conflict with the relevant policies contained in the built environment and natural environment chapters and in particular does not detract from the rural character of the locality.
In the case of proposals in the green belt all development in addition to meeting the above criteria, must also preserve the openness of the green belt."
"Public service providers include a variety of bodies, in both private and public ownership, who carry out functions of a public character under statutory powers. They include the provision of facilities such as gas, water and electricity supplies. The Borough Council supports improvements to existing public services. As the population of the Borough increases and there is pressure for further development, there will be a need for new and improved public services.
This chapter provides guidance about how proposals for new public service development will be dealt with by the Borough Council. Sites which have already been identified for future public service development are shown on the proposals map. The policies also deal with potential future proposals for the re-use of redundant public service buildings, such as hospitals and schools. These policies aim to ensure that the needs of the population of Vale Royal Borough are satisfied, in terms of public service provision and that, where redundant public service buildings exist, the buildings or sites are brought into an appropriate alternative use.
The Implementation Section, at the end of this chapter, explains how the provision of public services relates to the policies and proposals of this Written Statement."
"(i) Statutory undertakers include private and public bodies, who carry out functions of a public nature, such as water supply, education and road, rail and water transport.
(ii) The Borough Council recognises that it may be necessary for statutory undertakers to carry out certain kinds of development in order to maintain and improve the provision of services.
(iii) Every effort should be made to minimise the impact of such development on the existing rural software.
(iv) A development within the Open Countryside, Green Belt, Area of Special County Value/Significant Local Environmental Value to be carried out by a statutory undertaker will be allowed where it is a limited development which will form part of and be essential to the provision and improvement of public services and utilities. Where uses such as hospitals, electricity generating plant and substations, gas distribution substations, water and sewage treatment installations and public transport and related facilities are already established on sites within these special areas, this would not inhibit the continuation, improvement or reasonable extension of the use. However, where a proposal is made to locate within Areas of Significant Local Environmental or Special County Value an entirely new development, or a significant addition to or consolidation of an existing facility the Council will require the various public bodies concerned to show compelling reasons why a site outside these areas was not considered by them to be acceptable; and development of this kind will not be allowed, where no such compelling reasons appears to exist.
(v) Proposals for the redevelopment or change of use of such public buildings and facilities for purposes unconnected with operational requirements, will continue to be assessed on their merits. This means that development considered inappropriate in these special areas will not be allowed."
"A variety of public bodies and private organisations are involved in the provision of services for the public, and therefore in the implementation of the policies of this Plan. The Borough Council will aim to provide a framework for the actions of others through the application of these policies and the identification of sites for future public service development on the proposals map."
Thereafter there is a treatment in the implementation discussion of water supply, drainage and sewage, waste disposal, education and social services. Most of such discussion includes references to "the plan area". There is no specific reference anywhere in chapter 10 to natural gas storage and related works of the kind or scale proposed in the present planning application.
"The appellant claims that the proposal has the benefit of VRBLP policy PS1 as it is a public service development in open countryside. However, the development plan should be read as a whole. The very clear thrust of the Public Services chapter in the VRBLP, from its introduction and through its reasons and explanations, is that the public services that are envisaged are those that have the effect of supporting the citizens of the Borough. The support evinced in the VRBLP is for new and improved services to support the Borough as its populations increases, with associated increase in pressure for further development. It is not a willy-nilly support for development simply because it relates to a public service. In the case of this appeal, whilst the appellant claims that local benefits would accrue, those benefits are not simply to do with improved gas supply; the plain and clear intention of the proposal relates to national aspirations for gas supply, any local advantage would be incidental. I consider that the proposal does not have the benefit of policy PS1."
"I conclude that the part of the proposal associated with the gas wellheads would result in development that would fail to protect the character and appearance of the open countryside contrary to the development plan, and VRBLP policy GS6 in particular."
He went on to say this at paragraph 9.46:
"Even if it the proposal did have the benefit of policy PS1, and I describe in paragraph 9.23 above that it should not, the benefits claimed for the proposal would not outweigh the harm to the open countryside that I describe. Underlining my conclusions on the matter of the effect on the open countryside is the very important consideration of PPG7, paragraph 2.14 of which says that the countryside should be safeguarded for its own sake."
"The Secretaries of State have considered the Inspector's conclusion on the application of VRBLP Policy PS1 [IR 923]. They have also taken into account VRBLP Chapter 10, 'Public Services', and the specific policies that relate to local public services, such as PS2. In the Secretaries of States' opinion, in the context of a Local Plan, it is understandable that such policies should focus on the future infrastructure requirements of public service providers that most directly affect the administrative district. However, the introduction to Chapter 10 refers to the provision of gas, water and electricity supplies and, in the Secretaries of States' opinion, such public services are most appropriately considered in a wider context, as they are provided over areas which stretch beyond the administrative boundaries of local authorities. The Secretaries of State also note that VRBLP Policy PS1 does not explicitly refer to 'local' public services or expressly exclude public service development that may make provision for facilities affecting people living outside Vale Royal's area. The supporting text to VRBLP Policy PS1 similarly refers to statutory undertakers who carry out functions of a public nature, such as water supply, education, and road, rail and water transport. In the Secretaries of States' opinion, the examples given in that supporting text indicate that VRBLP Policy PS1 contemplates the provision of public service facilities of benefit to the wider community. Overall, the Secretaries of State disagree with the Inspector and consider that the appellant is entitled to derive some support from VRBLP Policy PS1 although the proposed development is primarily in the national public interest with any local advantage being incidental [IR 9.23]. The Secretaries of State have also taken into account the supporting text to VRBLP Policy PS1 which indicates that, where such development occurs outside settlements, an open countryside location is preferred to a location within Areas of Significant Local Environmental or Special County Value."
"VRBLP Policy GS6 seeks to protect the character and appearance of the open countryside. This is consistent with local (CRSP Policy GEN1), regional and national policies that seek to direct development to sustainable locations, mainly the larger settlements, using suitable previously developed land, which are accessible by non car modes of transport. The Secretaries of State consider that VRBLP Policy GS6 is of general application and that it does not purport to deal with any specific type of development. However, they accept that Policy GS6 applies to the proposed development. They also consider that, as the proposed development may be described as essentially industrial in character, its location in the open countryside would, in principle, be inconsistent with the objectives of Policy GS6. However, Policy GS6 does not purport to prevent all development in the open countryside."
The Secretaries of State went on to explain, however, why they were not persuaded to give the development's impact on the open countryside the weight ascribed to it by the Inspector: see, in particular, paragraphs 35 and 36 of the decision letter.
"The Secretaries of State conclude that there are no site specific or development specific policies in the Development Plan which apply to the proposed development. In their opinion, the Development Plan policies of most relevance to the proposed development are CRSP Policy GEN1 and VRBLP Policies GS6 and PS1. The spatial strategy of the Development Plan is consistent with government guidance in seeking to locate development in sustainable locations, mainly the larger settlements, and seeking to protect the open countryside. However, neither the national nor local policies preclude development in the countryside and, in the Secretaries of States' opinion, there will be occasions when necessary development cannot be located within a settlement. On such occasions, protection of the countryside will need to be balanced against the need for that development. VRBLP Policy PS1 acknowledges that public service development may occur in the open countryside. The Secretaries of State consider that VRBLP Policy PS1 applies to the proposed development. Policy PS1 provides support to 'essential' public service development in the open countryside, areas of special county value or areas of significant local environmental value. The Secretaries of State consider that the proposed development, as a whole, gains some support from VRBLP Policy PS1 but conflicts with VRBLP Policy GS6, and so is not in accord with the Development Plan."
"55. The Secretaries of State do not consider that there are any health, safety, ecological, nature conservation, traffic, noise, 'bad neighbour', or other matters which cannot be either adequately mitigated (whether by condition or as proposed in the planning obligation) so as to prevent the grant of planning permission, or which individually or cumulatively would justify the refusal of planning permission.
56. Having considered and weighed the countryside issues and the national public interest issues relating to energy needs, the Secretaries of State conclude that the energy benefits of the proposed development do outweigh identified concerns relating to the impact of the proposed development on the surrounding countryside."
"... it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."
"If there is a dispute about the meaning of the words included in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment  1 PLR 81, per Nolan LJ at 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law.
This, in my judgment, is the underlying principle of law which Auld J was putting into words in his judgment in Northavon DC v Secretary of State for the Environment  JPL 761. When discussing the meaning of the expression 'institutions standing in extensive grounds', the report reads at 763:
'The words spoke for themselves and were not readily susceptible to precise legal definition. Whether a proposed development met the description was in most cases likely to be a matter of fact or degree and planning judgment. He [the judge] said "in most cases" because it was for the Court to say as a matter of law whether the meaning given by the Secretary of State or one of his Officers or Inspectors to the expression when applying it was outside the ordinary and natural meaning of the words in their context. See Gransden (EC) v Secretary of State for the Environment (1987) 54 P&CR 86, per Woolf J, as he then was (upheld by the Court of Appeal  JPL 465). The test to be applied by the court was that it should only interfere where the decision-maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify.' ...
If in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning, and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then it will not have gone wrong in law."
(1) First, it is plain that ex parte Woods does not sanction such an approach. As Brooke LJ makes clear, the court will need to assess, as a preliminary matter, whether the interpretation propounded by the decision maker is one that the words used are in law properly capable of bearing.
(2) Second, and following on from that, if, in any particular planning case, one meaning is, on any viewpoint, highly probable but a counter meaning is advanced on behalf of the decision maker which can at best justify no epithet better than "tenuous", that, I apprehend, is not likely in the ordinary case to avail the decision maker; and in such a context the parties should not be surprised if the courts choose to adopt a robust approach. As stated by Mr George Bartlett QC (sitting as a deputy judge of the High Court) in Virgin Cinema Properties Limited v Secretary of State for the Environment  PLCR 1 at page 8, there may be instances, on a point of interpretation in a relevant planning context, where the ambit of reasonableness is narrow or even nil.
(3) Third, there may be instances where, even if the words of the policy taken on their own prima facie support the interpretation of the decision maker, consideration of the purpose and underlying objective of the policy in question may show that such linguistic interpretation simply will not accurately represent the true policy: see Patter and Harris v Secretary of state for Environment, Transport and the Regions  79 P&CR 214 as an example of that.
(4) Fourth, decision makers will of course need to bear in mind that the adoption of a particular interpretation of a policy in a development plan in a particular case will make it difficult, at all events in the absence of convincing explanation, for them to adopt a different interpretation in another case without attracting a challenge on the ground of arbitrariness or collateral purpose or the like.
"18. The Secretaries of State have considered the Inspector's comments and conclusion on need [IR 9.6 to 9.19]. They agree with the Inspector that security of supply is of national importance and it is prudent to add to supply [IR 9.9]. In their opinion, this is an important consideration that carries considerable weight. The Secretaries of State agree with the Inspector that the proposed development would increase storage capacity by about 10% and that this would assist the security of supply [IR 9.9]. In their opinion, this is a benefit of the proposed development that is of national importance. The Secretaries of State accept that, in addition to salt cavity storage, there are other ways to increase the security of supply [IR 9.12]. However, national energy policy does not purport to establish any hierarchy of, or state a preference for, particular methods for adding to security of supply. In the opinion of the Secretaries of State, salt cavity gas storage is a type of storage that will assist with the security of supply and the proposed development is consistent with national energy policy. The Secretaries of State consider that this weighs in favour of the proposed development...
21. The Inspector separately considers the beneficial impact of gas storage on the traded market for gas [IR 9.15]. The Secretaries of State agree with the Inspector's conclusion that the gas market would benefit from having greater storage and that salt cavity storage is good in terms of efficiency of the market [IR 9.19]. In the Secretaries of States' view, the fact that other types of gas storage also have a beneficial impact on the traded market for gas, does not detract from the benefits provided by the proposed development. In their opinion, the proposed development is entitled to have this benefit weighed in its favour in determining the appeal. The Secretaries of State have taken account of the Inspector's comments about the Aldbrough decision [IR 9.18]. The Secretaries of State cannot speculate about the implementation of the Aldbrough, or other, planning permissions. In their opinion, this proposal has to be assessed on the evidence before them.
22. The Secretaries of State have also had regard to the Inspector's conclusion and evidence relating to alternative locations for salt cavity storage [IR 9.19]. The Secretaries of State have given relatively little weight to the consideration of alternative sites given their findings on the effect of the proposed development on the open countryside set out in paragraphs 24 to 36 of this letter. In any event, the Secretaries of State consider alternative locations are limited in that onshore salt cavity storage can only occur where there are significant onshore salt deposits. In their opinion, the evidence indicates that the only comparable alternative location for salt cavity storage is in Yorkshire. The Secretaries of State consider that there is no reason to believe that the impact of such development in Yorkshire would be any less than the impact on the appeal site.
Overall Conclusion on Need
23. Security of supply is of national importance and the available evidence shows that, within the next seven years, there is a significant likelihood of a supply-demand gap. The proposed development provides an opportunity to increase the security of supply and should help meet a supply-demand gap. The proposed development will have a beneficial impact on the traded market for gas. Overall, the Secretaries of State consider that need for the proposed development has been established in the context of national energy policy and, as the proposal is consistent with national energy policy, these considerations will have considerable weight in the determination of the appeal [IR 9.19]"
In the last sentence of paragraph 35 of the decision letter this is said:
"While the Secretaries of State will have regard to general countryside planning policies, they will also have particular regard to the need for the proposed development, in terms of national considerations, in this instance national energy policy, and to physical constraints relating to potential alternative locations for onshore salt cavity storage (see paragraphs 18 to 23 of this letter)."
And in the section of conclusions, this is said at paragraph 52:
"The Secretaries of State consider that alternative locations for the proposed development are limited as onshore salt cavity storage can only take place where appropriate salt deposits exist. On the information available to them, the Secretaries of State do not consider that there is likely to be any alternative site for the proposed development which shows a significant benefit over the proposals before them."
"The Secretaries of State have considered the Inspector's comments and conclusions on health and safety issues [IR 9.47 to 9.63]. They acknowledge that these matters are of considerable concern to local residents and many objectors. The Secretaries of State accept that in determining this appeal, public fear and concern about health and safety issues is a material consideration. They have also taken into account the general guidance set out in PPG23 that the planning system should not be operated so as to duplicate controls that are the statutory responsibility of other bodies. The Secretaries of State are aware that, in addition to planning permission, the proposed development requires other consents to operate. For the reasons set out at IR 9.51 to 9.62, the Secretaries of State agree with the Inspector's conclusion that there is no safety reason to refuse the grant of planning permission, subject to the imposition of appropriate planning conditions, and providing all relevant safety requirements are satisfied [IR 9.63]. (See also paragraph 48 of this letter in relation to the issue of the potential for vulnerability to earthquakes [IR 9.56].)."
"CAP says that the proposal may have an adverse effect on the human rights of people nearby if the correct balance is not struck between the public interest and the interests of the individual. It asserts that the Secretaries of State could only grant planning permission for this case if there was some overwhelming public interest to be achieved. CAP provides reference to a number of human rights cases. I consider that the analysis that I have carried out has the balance of such interests at its heart, and that the eventual decision would have the same considerations in mind. It so happens that my analysis brings the balance down in favour of the objectors to the scheme; it may be that the Secretaries of State go the other way. In either case, I do not consider that the decision would amount to a suppression of human rights."
"In relation to human rights, the Secretaries of State have considered the submissions made by interested parties and the Inspector's comments and conclusions on whether the proposed development would result in a breach of the European Convention on Human Rights [IR 9.81 to 9.82]. The Secretaries of State agree with the Inspector's conclusions in IR 9.81 that there has been no breach of Article 6 and 9.82 that the decision on this appeal, whether to grant or refuse planning permission, would not amount to a suppression of human rights. In the Secretaries of States' opinion, the grant of planning permission for the proposed development would not result in the breach of the European Convention on Human Rights."
"43. It emerges from the authorities:
(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.
44. I add that the present alleged breach of Article 8 is based on a departure from the development plan but, following the reasoning in Hatton, where a Government scheme regulating movement of aircraft was under consideration, the Court would adopt the same approach whether it is in a departure from the development plan or an application of the development plan itself which is alleged to be in breach of Article 8. Of course, the contents of the development plan, and the procedure by which it is adopted, should be Convention compliant.
45. In the light of the authorities, and the inspector's findings of fact, Article 8 made no significant impact upon the task to be performed by the Inspector. Article 8 does not achieve the radical change in planning law inherent, although not acknowledged as such by the Appellants, in the submission summarised at paragraph 22 of this judgment that consideration should have been given to the possibility that the benefits achieved by the grant of permission could have been achieved in some other way or on some other site. Article 8, with its reference to the protection of the rights and freedoms of others, and Article 1 of the First Protocol with its reference to a person's entitlement to the peaceful enjoyment of his possessions, acknowledge the right of a landowner to make beneficial use of his land subject, amongst other things, to appropriate planning control. As Sullivan J stated in Malster, at paragraph 89, in relation to Article 1, the prospective developer 'is equally entitled to the enjoyment of its possessions.'
46. I am far from persuaded that, in circumstances such as the present, domestic law in general, and the planning process followed in this case in particular, fail to have regard to the Article 8 rights of people in the vicinity of the appeal site, including the Appellants. Departure from a development plan, even if it is from a provision entitled 'Protection of Amenity' does not of itself involve a breach of Article 8. In his approach to his task, the Inspector struck a balance which was entirely in accord with the requirements of Article 8 and the jurisprudence under it. There has been nothing arbitrary about the procedure followed and the striking of the balance provided that reasonable and appropriate measures were taken to secure the Appellants' rights in accordance with Article 8(1). The approach the Court should adopt was stated by Lord Bingham of Cornhill in Daly at paragraph 23: '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)'.
47. I find no breach of Article 8(1). Resort to Article 8(2) is not in my judgment necessary to uphold the decision, for the reasons I have given, but, if I am wrong about that, it provides, on the Inspector's findings, justification for the permitted development. I refer to the findings at paragraph 56 of the inspector's decision together with an acknowledgement of the right of a landowner to make use of his land, as a factor to be considered...
49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has "an excessive or disproportionate effect on the interests of affected persons" (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that 'it is important to emphasise that the striking of a fair balance lies at the heart of proportionality'.
50. I am entirely unpersuaded that the absence of the word 'proportionality' in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word proportionality is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessary in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straight-jacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case."