Published on 19 September 2022

FOURTH SECTION

Application no. 28799/21 Janice HEMMS against the United Kingdom lodged on 25 May 2021 communicated on 31 August 2022

SUBJECT MATTER OF THE CASE

The applicant is the owner of a cottage situated in an area of agricultural land within a designated green belt. The manager of an adjacent field (“C”) erected a solid timber structure along the line of a pre-existing boundary wall. The structure exceeded two metres at a number of points. It was erected approximately 30 centimetres from one of the cottage’s kitchen windows, with the consequence that the window was entirely obstructed. The structure was also positioned in close proximity to a living room window and conservatory, and it obstructed a number of windows in a detached holiday let situated within the curtilage of the cottage.

The Council issued an enforcement notice requiring the removal of the structure, alleging that it had been erected without planning permission, but following an appeal by C the notice was amended to permit its retention on the proviso that its height was reduced to no more than two metres. The applicant did not challenge that decision but instead invited the Council to exercise its discretion under section 102 of the Town and Country Planning Act 1990 to either require the removal of the structure or its replacement with a post and wire enclosure. The Council declined to make a section 102 order. It acknowledged that living conditions in the cottage’s kitchen had been substantially harmed, and that the reduction in light was unacceptable in planning policy terms, but in view of the limited scale and magnitude of the harm it considered that it would be grossly disproportionate and unreasonable to intervene. The Council did not consider that the obstruction of the kitchen window was sufficiently serious as to engage the applicant’s rights under Article 8 of the Convention but in any event it considered any interference to be necessary and proportionate.

In refusing the applicant permission to judicially review that decision the High Court indicated that a reduction in light to one room, where the room still benefitted from other windows, was not serious enough to fall within the scope of Article 8. Permission to appeal was refused.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant’s rights under Article 8 of the Convention to respect for her home and private life? Has there been a breach of her rights under that Article?

2. Given that the applicant did not challenge the Council’s decision amending the original enforcement notice, has she exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention? Was it open to the applicant to seek a remedy through private law proceedings?