Gosbee and another v First Secretary of State and another

Appellants granted planning permission on condition they demolish existing dwelling — Appellants failing to comply — Inspector ordering demolition — Whether order infringing appellants’ rights under Article 8 of European Convention on Human Rights — Appeal dismissed The appellants owned land upon which were sited a house and a barn. They were granted planning permission to convert the barn into a residential dwelling and to build a new house on the land, on the condition that, once this was completed, they would demolish their existing house. The couple subsequently sold part of their land to a third party, who built a house on it. The planning permission for the conversion of the barn was allowed to lapse, and the appellants failed to demolish their own property. The second respondent council served an enforcement notice, which the appellants appealed to the inspector, who upheld it. The appellants appealed under section 288 of the Town and Country Planning Act 1990. They claimed that the underlying thrust of the planning permission was to allow two residential properties to exist on the site, and, since they had allowed the planning permission on the barn to lapse, that was the actual outcome of their actions. Alternatively, they argued that their rights under Article 8 of the European Convention on Human Rights had been infringed, given that one of the appellants was critically ill and given that they would both face financial ruin if forced to demolish their home. Held: The appeal was dismissed. The appellants had been granted planning permission specifically to construct a new house in order to replace their existing one, which was subjected to the smell and noise of neighbouring stables. Planning permission in respect of the barn allowed only for its conversion, not for any extension of the property, and would thus result in a small dwelling. The correct implementation of the planning permission would therefore have created a house that corresponded, in overall size, to the appellants’ original home and an additional small dwelling that, in location and external appearance, corresponded to the existing barn. In effect, this would have impinged only marginally upon the appearance and use of the land. The same effect would not be achieved by constructing an additional house on the land. If the appellants’ rights under Article 8 were affected, the question was whether such interference would be outweighed in the interests of public amenity. Such a decision was for the inspector to determine, and the court would not interfere with his findings of fact. On the evidence presented to him, the inspector had been justified in holding that the public interest factor in enforcing the terms of the planning permission outweighed the harm caused to the appellants. It was open to an appellant to argue that an inspector’s remedy was disproportionate and could have been achieved by less intrusive means. In this case, the appellants claimed that it had been open to the inspector to defer implementation of the planning condition so that the appellants, one of whom was seriously ill, could remain in what had been their home for the previous 30 years. This option had not been put to the inspector at the hearing and he had been under no obligation to cast about him for ways in which to protect the appellants’ rights under Article 8. It was clear that he had considered the evidence placed before him at the hearing with the correct degree of “anxious scrutiny”. It was also clear that he had understood that the effect of his decision would be that the appellants would lose their home. However, the situation had been caused by the appellants’ own actions. Lisa Busch (instructed by The Stokes Partnership, of Crewkerne) appeared for the appellants; James Maurici (instructed by the Treasury Solicitor) appeared for the respondent; the second respondents did not appear and were not represented. Vivienne Lane, barrister