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APPENDIX 7 - Note on privacy as a material consideration in planning case law
A first point is that the term 'privacy' appears to be used somewhat indiscriminately and can either overlap with or be an umbrella term for other issues such overlooking, loss of light and general residential amenity.
It also appears that the question of privacy has assumed a greater significance (or at least use) in recent years due to Art 8 ECHR and respect for home and family life. Cases have also been founded on the peaceful enjoyment of possessions under the first protocol to Art 1.
There are some interesting dicta in these cases. For example Lord Hope in Marcic v Thames Water Utilities Ltd (HoL, 2004) states:
"I believe that the key to a proper understanding of the issues in this case lies in an appreciation of the fact that Art 8 regards a person's home as an aspect of his right to privacy. The interpretation which I would give to the concept of a person's home in this context is broad enough to give a full measure of protection in a wide range of circumstances where a person's right to respect for his home is interfered with by the public authorities".
However, in that case Lord Hope went on to say that the point at issue had far more to do with the law of private property rights than respect for a person's privacy. Generally the courts seem reluctant to utilise the ECHR "privacy context" in the context of challenging planning decisions. While noting that the law must offer protection to the environment of the home the cases emphasise that public authorities, such as planning authorities, can interfere with the Art 8 rights and every loss of amenity will not constitute a breach of Art 8. The Authority must proportionately balance the interests of the individual, other individuals and the community as a whole and any loss of amenity must be substantial before a breach might arise. The margin of appreciation afforded to planning authorities in implementing planning policy will be wide.
Of course the Art 1 cases have emphasised that the developing party also has a right to enjoy his property!
On the basis of a limited search, there is no known reported case which was decided on the basis of the privacy of a neighbour. However, several cases of judicial review of planning decisions, in listing the material considerations which it is contended that the planning authority did not take into account, note loss of privacy on adjoining properties. Although none of these cases is decided on that point, the point is not ruled as being immaterial.
There are of course some references to private interests as being material to planning applications. Thus in Stringer v Minister of Housing and Local Government ( QBD, 1973) per Lord Widgery:
"I find it equally difficult to accept that the local planning authority and the Minister on appeal must have regard only to the public interest as opposed to private interests. It is, of course, true, as Salmon J. pointed out in the Buxton case [1961] 1 Q.B. 278, that the scheme of the legislation is to restrict development for the benefit of the public at large. But it seems to me that it would be impossible for the Minister and local planning authorities to carry out their duties as custodians of the public interest if they were precluded from considering the effect of a proposed development on a particular use of land by a particular occupier in the neighbourhood. The public interest, as I see it, may require that the interests of individual occupiers should be considered. The protection of the interests of individual occupiers is one aspect, and an important one, of the public interest as a whole. The distinction between public and private interests appears to me to be a false distinction in this context".
Other cases stress that protection of private interests should not be an end in itself, the question being whether any particular private interest in any case required to be protected in the public interest (see A L Wood-Robinson v Secretary of State for the Environment and Wandsworth LBC, 1998). If it is concluded by the decision-maker that it is in the public interest to preserve the private right then this will be a legitimate consideration.
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