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Peverse incentive

By J

We don’t usually cover gypsy & traveller planning permission cases, since they tend to turn on their own facts, but Rafferty and another v Secretary of State for Communities and Local Government and another [2009] EWCA Civ 809 has one point of wider importance.

The appellants owned a site (comprised of two separate plots) at Reeves Ground. They did not move onto the site but applied for planning permission. That was refused, both by the local planning authority (North Somerset Council) and by the planning inspector.

Part of the reasoning of the inspector was that, because the appellants did not live on the land, any dismissal of their application would not amount to a violation of their rights under Art. 8, European Convention on Human Rights. There was no loss of their home and, hence, no interference.

The case came before the Court of Appeal on a number of points, but this was the most significant one. The Court of Appeal was troubled by the logic. It was clear that a person who moved onto land (unlawfully) and then applied for planning permission could rely on Art. 8. Why should a person who had applied for permission without first going (unlawfully) onto the site be in a worse position? That was a perverse incentive and one which encouraged persons to break the law, in order to acquire the benefit of an Art. 8 argument.

The inspector was, therefore, wrong. It was “as much a lack of respect not to allow [the appellants] to move onto the site… as to make them move off it. The effect in either instance [was] to deny them a stable base” (at [28]).

However, it was inconceivable that the inspector would have granted planning permission even if he had not fallen into the error described above. Appeal dismissed.

J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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