Human rights – Right to respect for private and family life
AZ v Secretary of State for Communities and Local Government and another: Queen's Bench Division, Administrative Court: 20 December 2012
The claimant and his wife purchased land in an open field in the green belt (the land). The land was purchased as an ideal location for the claimant to pitch his mobile home to enable him and his son to live in a location which would provide a solution to the claimant’s fear of enclosure, his need for an open-air lifestyle and allow the claimant’s wife to care for him and his son on a daily basis, as well as caring for her chronically disabled sister at her home. The claimant's son had infrequent contact with his mother.
The claimant applied to the second defendant local authority for planning permission for the stationing of his mobile home on the land for residential purposes. The second defendant failed to give notice of a decision on the claimant’s application within the prescribed period. The claimant appealed under section 78 of the Town and Country Planning Act 1990 (the 1990 act). Psychiatrists and the claimant's general practitioner gave evidence that the claimant suffered from an apparently untreatable chronic anxiety state or condition which overcame him when he was in any enclosed space. There was further evidence that the claimant suffered depression and a personality disorder, and that he was illiterate and had a relatively low IQ.
An inspector appointed by the first defendant secretary of state (the inspector) dismissed the claimant’s appeal. She found that temporary planning permission would be inappropriate given that there was no realistic prospect of a change in the claimant’s psychiatric condition. The claimant applied under section 288 of the 1990 act to question the decision on the inspector refusing to grant either planning permission or a temporary planning permission.
It fell to be determined: (i) whether the inspector had failed to properly consider and assess the psychiatric evidence and thereby failed to assess the weight to be given to that evidence; (ii) whether the inspector had failed to consider the claimant’s, his son’s, his wife’s, his sister-in-law’s and his son’s mother’s rights to family life under article 8 of the European Convention on Human Rights; and (iii) whether the inspector had failed to properly consider the imposition of a personal condition and the claim for temporary planning permission. The application would be allowed.
(1) The inspector had erroneously confined her consideration of the psychiatric, psychological and medical evidence to the claimant’s fear of enclosed spaces. As a result, her conclusion that there had been no evidence that the only site that the claimant could live on was the land had been based on an incomplete evaluation of the available evidence and her proportionality assessment had been both incomplete and inadequate (see  of the judgment).
(2) The inspector did not consider the claimant’s family life to any significant extent and certainly did not consider each of the four family members’ enjoyment of family life with the other three. Furthermore, she did not pay any respect to the son’s and the wife’s home in the mobile home on the land. Finally, there had been significant gaps in the consideration of each of the family’s entitlement to respect for their respective home lives on the land, and the claimant’s wife and sister-in-law’s family and private lives and home life at the claimant’s sister-in-law’s home (see  of the judgment).
(3) The inspector should have considered four linked possibilities having ruled out a full permission: (i) amending the terms of the permission so as to reduce the perceived harm caused by the proposal; (ii) a personal condition; (iii) a time-limited condition; and (iv) the appropriate length of a time-limited condition. The inspector had failed to consider three of those possibilities and had erroneously limited her consideration of a time-limited condition to the possibility of a change in the claimant’s psychiatric condition (see  of the judgment). The inspector’s decision could not stand since it did not take into account a series of requirements that it should have complied with (see  of the judgment).
Michael Rudd (instructed by Bramwell Browne Odedra Solicitors) for the claimant; Lisa Busch (instructed by the Treasury Solicitor) for the secretary of state ; The local authority did not appear and was not represented.