Gypsy caravan site — Enforcement notice — Prosecution for breach — Whether decision to prosecute reviewable — Claim dismissed
The claimant and her family were gypsies. They purchased and moved onto a plot of land in the green belt that was already affected by enforcement notices prohibiting the stationing of caravans. The claimant applied for planning permission to the defendant council to use the site for caravans, but moved onto the site before that application had been determined and in full knowledge of the existence of the enforcement notices. The defendants decided to prosecute the claimant and her husband for non-compliance with the enforcement notices, pursuant to section 179 of the Town and Country Planning Act 1990, if they did not vacate the land by a given date.
The claimant brought judicial review proceedings to challenge that decision, arguing that exceptional circumstances rendered it unfair for the defendants to prosecute. She relied, inter alia, upon the impossibility of finding an alternative site, and the new government guidance on gypsy sites in Circular 01/06, and argued that the prosecution breached her rights under Article 8 of the European Convention on Human Rights.
Held: The claim was dismissed.
Although a decision to prosecute under section 179 could be the subject of judicial review, the court’s reviewing jurisdiction should be exercised sparingly. It was only in truly exceptional circumstances that a challenge to a decision would have a chance of success: R (on the application of O’Brien) v Basildon District Council [2006] EWHC 1346 (Admin) applied. Such an approach did not fail to protect the claimant’s human rights, since it would be open to the magistrates hearing the case to consider any arguments that the prosecution was an abuse of process. In doing so, they would, as a public authority, be obliged to respect the claimant’s human rights and would have to deal with any submission by the claimant that those rights were being breached. Furthermore, the magistrates had a discretion as to the penalty to be imposed. Even if they decided that the prosecution was not a breach of Article 8, it was open to them to impose a merely nominal penalty. It also had to be noted that the penalty on a section 179 prosecution was a fine and no power of imprisonment were available.
There were no exceptional circumstances to justify an interference with the defendants’ decision in the instant case. Their actions had not been disproportionate in circumstances where the claimant had come onto the site despite knowing that it was the subject of a prohibition on the use that she wished to make of it. The possibility of success on a planning appeal could not render the decision to prosecute flawed. Although the defendants might well choose to await the outcome of such an appeal, they were under no obligation to do so: O’Brien applied.
David Watkinson (instructed by South West Law, of Bristol) appeared for the claimant; Robin Green (instructed by Sharpe Pritchard) appeared for the defendants.
Sally Dobson, barrister
