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Planning Inspector Decides Child’s Interests are of Paramount Importance

20/06/2017

FBC Manby Bowdler’s Planning Team is delighted to have won a planning appeal on behalf of a client who had been served with an Enforcement Notice requiring him to demolish an extension which he had constructed on to his family home without planning permission, and where the extension was well beyond what would normally be allowed in the particular area. 

 

 

 

The appeal was considered at a two day Public Inquiry where the case was presented by Niall Blackie assisted by Mark Turner. It relied heavily on the contention that the interests of the Appellant’s son, who is within the autistic spectrum, should be given paramount importance when deciding whether the Council’s notice should be upheld. Medical and educational evidence was advanced on behalf of the child which supported the Appellant’s contention that the unlawfully constructed extension would provide great benefits for the child and assist in his development. For obvious reasons we are not disclosing any personal information that would enable the family or the location to be identified.

Acting as Advocate for the Appellant at the inquiry, Niall Blackie referred the Inspector to a large body of case law concerning the rights of children and directly addressed the question of the weight which should be given to a child’s interests and to the family’s Human Rights in planning cases. One of those cases was the House of Lords’ case of Great Portland Estates, where the judgment of Lord Scarman was that: “It would be inhuman pedantry to exclude from the control of our development the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance”.  That judgment  has sometimes been relegated to the point of being applied only in a finely balanced case (wrongly diminishing its wide effect, in our view). 

However Niall built on that planning case by reference to the Advancement of Equality Act 2010 which, he said, indicates that Councils should advance equality of opportunity for disabled people (such as the child in this case) to minimise the disadvantages they suffered, and to take steps that take account of the disability. Niall also submitted, relying on the case of AZ v Secretary of State for Communities and Local Government, that in all matters concerning children, the interests of the child have to be a primary consideration.  He argued that in this appeal, to force the works to be undone would be an interference with the Appellant’s family and home life and that because of the impact on the particular needs of the child in question the requirement to demolish the extension was not a proportionate response.

The Planning Inspector appointed by the Secretary of State to determine this important appeal agreed that the child’s interests should indeed be a primary consideration and gave significant weight to them. He was also persuaded, on the basis of the medical and educational evidence put forward, that allowing the extension to remain would undoubtedly be in the interests of the child’s welfare and educational development. The Inspector agreed that the matters were determinative and therefore quashed the Council’s Enforcement Notice, allowing the Appellant to retain the extension.

The case highlights the difficulty involved in balancing the supposed public interest in the consistent application of planning policies and the very specific and personal interests of a child.

It is an example of the well known planning principle that policies are not to be ‘slavishly’ applied but must yield to particular circumstances. It demonstrates that in fact the overall public interest is in ensuring the well-being of people.

For further information, please contact Niall on 01952 211320 or send us an enquiry using button below. Alternatively, visit our Town & Country Planning services.


 


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