CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 20 février 2024

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Buxton of Richard Buxton Solicitors, a firm of solicitors based in Cambridge; the decision to give notice of the complaint concerning Article 8 of the Convention to the United Kingdom Government (“the Government”), represented by their Agent, Mr S. Linehan of the Foreign, Commonwealth and Development Office, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The present case concerns a planning dispute over the erection of a fence by virtue of which outlook from and natural light in the applicant’s kitchen were significantly eroded. THE COURT’S ASSESSMENT Factual background 2.     The applicant was the owner of a cottage (“the cottage”) situated in an area of agricultural land within a designated green belt. Without planning permission, the manager of an adjacent field (“C”) erected a solid timber structure along the line of a pre-existing boundary wall, apparently to protect a tenant’s cattle. The structure was erected approximately thirty centimetres from one of the cottage’s kitchen windows. The structure was also positioned in close proximity to a living room window and conservatory in the cottage, and it obstructed a number of windows in a detached holiday let situated within the curtilage of the cottage. 3.     By virtue of Article 3 and Class A of Part 2 to Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order   2015 (“the GPDO”), the erection of a fence or other means of enclosure was permitted provided, inter alia , that the fence did not exceed two metres above ground level. Planning permission was deemed to be granted for permitted developments. 4.     On 5 October 2015, following a site visit, the local planning authority (“LPA”) sent a final determination advising C that it did not consider the fence to constitute a “means of enclosure” and that it might not be a “permitted development”. The LPA recommended either that the fence be removed or a retrospective application for planning permission be made. However, it advised C that if planning permission were required it would be unlikely to receive officer support. C neither removed the fence nor applied for planning permission within the time period specified. 5 .     On 22 December 2015 a planning contravention notice was served on C which was followed, on 23 May 2016, by an enforcement report. The report reiterated that the fence did not constitute a “means of enclosure” and was therefore not a “permitted development”. It also repeated the warning that a retrospective application for planning permission would be unlikely to obtain officer support. In this regard, the LPA noted that the fence had a “severe adverse impact” upon the cottage’s amenities as it obstructed natural light from entering the ground floor living areas and thus caused significant harm to the reasonable enjoyment of the property. The report recommended that an enforcement notice be issued requiring the removal of the structure within six weeks of the date the notice took effect. 6.     C appealed against that decision. On 3 February 2017 a Planning Inspector, after having carried out a site visit, directed that the enforcement notice be amended to permit the retention of the fence on the proviso that its height was reduced to no more than two metres. The Inspector found that the fence did function as an enclosure but it exceeded two metres at certain points. With regard to the applicant’s living conditions, the Inspector, who had not been given access to the cottage, noted from the photographs that light levels in the interior of the kitchen and living room were “materially diminished” and that there was some loss of outlook. He therefore concluded that the fence harmed the applicant’s living conditions by reason of loss of outlook and daylight. He considered that the structure was “unacceptable on its merits” but that the breach could be remedied if the notice were amended as set out above. 7.     The height of the fence was subsequently reduced to two metres from natural ground level. 8.     The applicant did not challenge that decision but instead invited the LPA to exercise its discretion under section 102 of the Town and Country Planning Act 1990 to require the removal of the structure. The LPA declined to do so. While the effect on amenity weighed in favour of making an order, the fact that the “planning harm was relatively localised” and the fence had weathered, making it less visually prominent, weighed against. Making a section 102 order would also open the LPA to liability to pay compensation, and would not be a good use of its limited resources. The LPA further noted that such an order would only have practical effect if accompanied by a direction removing the right to erect a replacement fence. However, such a direction would require a clear justification and in the present case it would be disproportionate and contrary to guidance to make one. 9.     The High Court granted the applicant permission to apply for judicial review on two grounds but refused to grant permission on the Article 8 ground. 10.     The applicant subsequently withdrew her claim and the defendant agreed to make a fresh decision on whether to make a section 102 order. 11 .     In that fresh decision, taken on 7 November 2019, the LPA noted that the cottage had been inspected internally and it was evident that the kitchen window had been entirely obstructed and both outlook and natural light had been significantly eroded. Although the kitchen had another window, and a certain amount of daylight remained, the LPA accepted that the living conditions in the kitchen had been substantially harmed. As such, while the fence was compliant with the green belt development plan it was contrary to its policy on residential amenity. Insofar as the fence could be seen from other windows, at greater distance, and obstructed a number of windows in a detached holiday let, the impact was neither unacceptable nor contrary to the aforementioned policy. 12.     Nonetheless, the LPA did not consider Article 8 of the Convention to be engaged as the adverse impact on amenity was not sufficiently serious. Even if it were engaged, the interference would have been necessary and proportionate having regard to the need to protect cattle. 13.     The LPA then weighed the public benefits of making a section 102 order against the public disbenefits of doing so. On the one hand, it noted that the fence was a permitted development. If the harm to amenity was sufficient a section 102 order could be made together with a direction removing the right to erect a replacement fence. However, the harm in this case was not sufficient to justify such measures, which would include removing permitted development rights for a future means of enclosure. Furthermore, the issuing of a section 102 order brought with it potential compensation consequences and a risk of litigation in the Upper Tribunal. 14.     That decision was subsequently reviewed and an addendum report, affirming the previous decision, was issued on 4 February 2020. 15.     On 19 May 2020 the applicant was refused permission to apply for judicial review. She renewed her application and a hearing took place on 6   October 2020. 16.     In a decision dated 14 December 2020 the High Court found none of her grounds to be arguable. It held, inter alia , that the reduction of light was not serious enough to fall within the scope of Article 8. The court further accepted that an important factor weighing against the grant of the section 102 order was that the issue would absorb officer time which would be better deployed in the public interest elsewhere. 17.     Permission to appeal was refused on 17 February 2021. The Court’s analysis 18.     The applicant complained under Article 8 of the Convention that the domestic authorities and courts failed to appreciate that her rights were engaged and should be subject to a proportionality assessment. 19.     The Government argued that Article 8 was not engaged. Alternatively, if it was engaged, its positive obligation had been to put in place a reasonable scheme balancing individual rights against the wider community interest. This was achieved through the planning and statutory appeals process, and through the availability of private law proceedings (for example, for nuisance). The applicant did not seek to judicially review the decision of 3   February 2017, nor did she bring private law proceedings against C. Finally, and in any event, at every stage the domestic authorities and courts had carefully considered her interests, C’s interests and the interests of the wider community. 20.     The Convention does not expressly recognise the right to a healthy and quiet environment, but a question may arise under Article 8 where a person suffers directly and seriously from pollution (see Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 96, ECHR 2003-VIII). In such cases a minimum level of severity must be attained before Article 8 will be applicable. In other words, an environmental hazard must attain a level of severity resulting in significant impairment of the applicant’s ability to enjoy his or her home or private or family life. The assessment of this minimum level is relative and depends on all the circumstances of the case, such as the intensity and duration of the nuisance and its physical or mental effects on the individual’s health or quality of life (see Denisov v. Ukraine [GC], no.   76639/11, § 111, 25 September 2018, with references therein). 21.     Convincing evidence showing that the threshold of severity was attained has to be submitted by the applicant ( ibid ., § 114). 22.     The Court would not exclude the possibility that inadequate or excessive light could significantly impair an individual’s ability to enjoy his or her home or family life. However, in the present case the applicant has not demonstrated that the loss of light to her kitchen was serious enough to affect adversely, to a sufficient extent, her enjoyment of the amenities of her home and the quality of her private and family life (see, for example, Cherkun v.   Ukraine (dec.), no. 59184/09, § 80, 12 March 2019). It is true that in the report of 23 May 2016 the LPA appeared to acknowledge that the fence had a “severe adverse impact” upon the cottage’s amenities as it obstructed natural light from entering the ground floor living areas and thus caused significant harm to the reasonable enjoyment of the property (see paragraph   5 above). However, in its later decision of 7 November 2019, for the purposes of which the cottage had been inspected internally, the LPA accepted only that the living conditions in the kitchen had been substantially harmed, and even then a certain amount of daylight remained by virtue of a second (unobstructed) window. The impact on the rest of the property was less severe (see paragraph 11 above). 23.     The applicant relies on the above-mentioned findings but has provided no further evidence as to how, in practical terms, her enjoyment of the amenities of her home and the quality of her private and family life have been impaired by the erosion of light in her kitchen, nor has she suggested that there have been any effects on her physical or mental health. In her observations she alleged for the first time that the erection of the fence impeded her ability to maintain the historic boundary wall of her property. However, this is an altogether different complaint from that raised both in her initial application to the Court and in the proceedings before the domestic courts, which concerned only loss of light and outlook. 24.     In the light of the foregoing, she cannot be said to have provided the Court with convincing evidence that the minimum threshold of severity required by Article 8 of the Convention has been met in the present case. Accordingly, this complaint is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.   For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 14 March 2024.     Valentin Nicolescu   Branko Lubarda   Acting Deputy Registrar   President