Cases - Lough v First Secretary of State and Bankside Developments Ltd
Record details
- Name
- Lough v First Secretary of State and Bankside Developments Ltd
- Date
- [2004]
- Citation
- EWCA Civ 905
- Legislation
- Keywords
- Planning control
- Summary
-
Planning permission was granted, on appeal, for a 20-storey building. Local residents challenged that decision on the basis that their Article 8 and First Protocol, Article 1 rights had been infringed. Article 8 was said to be engaged by a departure from the development plan involving loss of privacy, overlooking, loss of a view, loss of light, interference with television reception and diminution in value of properties. It was also claimed that diminution in value of homes interferes with the peaceful enjoyment of them under the First Protocol, Article 1. Furthermore there was no reference to proportionality in the inspector's decision letter.
In delivering the leading judgment, Lord Justice Pill said:
'Article 8 should in my view normally be considered as an integral part of the decision maker's approach to material considerations and not, as happened in this case, in effect as a footnote.'
Nevertheless the Court upheld the decision because the inspector struck a balance which was entirely in accord with the requirements of Article 8. It was also clear from the findings of fact that, even if there were an infringement of Article 8 rights, it was justified under Article 8(2) once one took into account the need to protect the 'rights and freedoms of others'.
The absence of the word 'proportionality' did not render the decision unsatisfactory. The concept of proportionality is inherent in the approach to decision making in planning law. The inspector's balancing exercise was sufficient to meet any requirement of proportionality.
Lord Justice Pill did not accept that diminution in value is a separate and distinct breach of the Articles.
'I readily accept that a diminution in value may be a reflection of loss of amenity and may be taken into account as demonstrating such loss and its extent ... A loss of value in itself does not involve a loss of privacy or amenity and it does not affect the peaceful enjoyment of possessions. Diminution of value in itself is not a loss contemplated by the Articles in this context ...The weighing of interests should not be converted into an exercise in financial accounting to determine the loss to the respective landowners and the community.'