Pickles rejects breach of human rights claim and grants planning permission

The Council had argued the proposal would overlook surrounding residential properties and affect their right to privacy, which would constitute an interference with their human rights.

The proposed development involved the conversion of 23 offices to 53 residential units under Class J of the General Permitted Development Order 1995 (GPDO).The GPDO allows for the conversion of offices to homes without the need for planning permission. Pickles decided it was outside the remit of the Council to review whether the development had an impact on local residents or if it was incompatible with Article 8. He said the Council was only entitled to assess the approval of such developments in relation to three grounds; transport and highways impacts, contamination risks and flood risks on site. The Council argued that granting such approval would be unlawful as there was no scope for them to assess if the development conflicted with Article 8.

A decision letter (58-page / 633 KB PDF) issued on behalf of the communities secretary on Friday said Pickles agreed with planning inspector C L Sherratt that it was clear parliament only wanted local authorities to consider the three grounds above in such situations and that it was not an invitation for local authorities to consider the impact on the local residents. If a Council were to consider the loss of privacy for Class J conversions, this would fundamentally change the intention of the legislation, the communities secretary said. Pickles said that "Class J represents a deliberate policy choice that matters such as residential amenity should not provide a basis to refuse prior approval under Class J, because this would defeat the policy aims behind the creation of [it]".

In any event, the communities secretary argued that the threshold for determining if human rights had been violated was high. When assessing the impact, he considered the location, the number of properties affected and the hours overlooking may occur. Pickles concluded that he did accept "that the threshold has been crossed in this case. It is relevant to note that this is a densely occupied urban area, close to the centre of London, in which some degree of overlooking will often occur… in those circumstances a development which will simply increase the hours during which a small number of properties will be overlooked does not, in [his] view, give rise to a sufficient impact on amenity so as to amount to a lack of respect for privacy under Article 8(1)".

Pickles considered this case on its individual merits but said that in future cases he "expects local planning authorities, and Inspectors hearing appeals against their decisions, to proceed on the basis that Class J is compatible with Article 8."

Planning expert Jennifer Holgate of Pinsent Masons, the law firm behind Out-Law.com, said: "This is not the first appeal in the capital wrestling with human rights; in our experience the potential claims relating to the grant of any consent and Article 8 have recently increased."

"A balance must be sensitively struck between allowing a local authority the freedom to develop land held for planning purposes and needing to protect the interests of those who are affected," said Holgate. "Whilst compensatory measures are in place to achieve this aim, the fine line between what is or is not developed in the 'public interest' (as is the legal test), coupled with large development across London adjacent to existing multiple dwellings, has fuelled further interest in possible judicial reviews. Any future developer or local authority needs to ensure that each hurdle being jumped to demonstrate that the rights have been overridden all are categorically cleared."