Town and country planning – Gypsies – Caravan site – Appellant and her family stationing caravans on green belt land in breach of planning control – Enforcement notice issued and upheld on appeal to secretary of state – Respondent council deciding to exercise powers under section 178 of Town and Country Planning Act 1990 to clear the land following expiry of compliance period – Whether irrationally failing to take into account lack of alternative pitches – Whether appellant entitled to revive human rights challenge for which court previously refusing permission – Appeal dismissed
The appellant was a Romany gypsy who, with her family, occupied caravans which, in breach of planning control, had been stationed since 2009 on agricultural land in the green belt near Waltham St Lawrence, Berkshire. The occupants of the caravans included children who attended the local school and an elderly lady suffering from Alzheimer’s disease.
In late 2009, the respondent council issued an enforcement notice, requiring cessation of the use of the land for residential purposes, the removal of all caravans and hardstanding and the return of the land to grassland. The period for compliance was two months. In February 2010, the respondents refused an application for planning permission to use the land as a residential caravan site. An appeal against the enforcement notice, brought under section 74 of the Town and Country Planning Act 1990, was dismissed by the secretary of state in August 2011 on the recommendation of his planning inspector made following an inquiry, save that the period for compliance was extended to 18 months.
At the inquiry, the inspector considered that little weight should be given to the respondents’ failure to make sufficient provision for gypsy caravan sites in their area. He noted that the respondents were working on development plan documents that were expected to result in the identification of sites by 2013. He acknowledged that upholding the enforcement notice would result in a significant interference with the occupants’ right to respect for their private life, family life and home under Article 8 of the European Convention on Human Rights; however, he considered that a grant of planning permission could not be justified, given the considerable harm to the green belt, and that the interference with Article 8 rights was proportionate.
When the caravans remained in place after the end of the compliance period, the respondents resolved to exercise their enforcement powers under section 178 of the 1990 Act to clear the land and evict the occupants. The appellant applied for judicial review of that decision on the grounds that the respondents’ decision was: (i) disproportionate and contrary to the Article 8 rights of the occupants; and (ii) irrational or perverse, in that it failed to give any meaningful weight to their failure to provide alternative pitches in circumstances where both the inspector and the secretary of state had expected that they would do so.
Both the High Court and the Court of Appeal refused permission to advance the proportionality ground. Although permission was granted for the irrationality ground, the claim was dismissed following the substantive hearing. The appellant appealed against that decision and also sought to re-open the proportionality issue.
Held: The appeal was dismissed.
(1) The scope of the appeal should not be widened to include the proportionality issue. The Court of Appeal had already ruled that the appellant should not be given permission to include that ground in her judicial review claim and it was an abuse of process to try to resurrect it on an appeal from the substantive judgment. Furthermore, it was not the function of the Court of Appeal to operate as a first instance trial court for the purpose of deciding the proportionality of the action taken by the respondents. If there were good grounds for saying that, under current circumstances, there would be a breach of Article 8 rights in removing the occupants from the land, that case would have to be put to the Administrative Court, presumably by way of a new claim. The Court of Appeal would then exercise its ordinary appellate function in relation to any decision of the Administrative Court in the usual way, and with the benefit of a considered judgment by that court.
Moreover, there was no requirement under Article 8 for a further, separate examination by the court of proportionality issues that had already been properly and lawfully determined on the appeal against the enforcement notice. The Article 8 rights of the appellant and other occupants of the land had already been taken properly into account in the secretary of state’s decision on that appeal, the lawfulness of which had not been challenged. The respondents’ proposed exercise of their powers under section 178 would simply give effect to that decision. The court would check that the respondents’ decision accorded with ordinary public law standards, but, in the absence an exceptional case where there had been a sufficiently material change of circumstances since the decision to uphold the enforcement notice, it was legitimate to proceed on the basis that the proposed action would properly satisfy the requirements of Article 8 and hence that no further, separate consideration of proportionality was required.
(2) The appellants’ rationality challenge also failed. It was not a fundamental premise of the secretary of state’s decision to uphold the enforcement notice that the caravans and their occupants should only be removed from the land once a suitable alternative site had been identified for them. In that regard, there was no failure by the respondents to accord proper weight to the secretary of state’s decision.
Moreover, the respondents had not acted irrationally by deciding not to delay their enforcement under section 178 until they had investigated more fully whether an alternative site might be found for the caravans from a list of potential sites provided to them. The respondents had already waited a considerable period of time to implement the 2009 enforcement notice, during which period serious harm to the public interest had continued by reason of the location of the caravan encampment on green belt land. The 18-month period allowed by the secretary of state for compliance with the notice had expired and, from the expiry of that period, there was a continuing breach of planning control in contravention of the criminal law. It was speculative whether any new site on the list would be suitable for a traveller site, let alone result in a new location with proper planning permission to which the appellant and other occupants could move in the near future. In light of that state of affairs, it was not irrational or perverse for the respondents to decide to exercise their section 178 powers to clear the land without waiting any longer. The respondents had a discretion in deciding how to exercise their own powers under section 178. They had rationally decided, as a matter of planning judgment, that they should exercise those powers in the instant case, weighing up the desirability of acting promptly to end the harm to the green belt, and the public interest, against the interests of the occupants of the land, assessed in a context where those interests had already been brought into account by the inspector and the secretary of state in the decision to uphold the enforcement notice with some additional time for compliance.
Stephen Cottle (instructed by Lester Morrill Inc Davies Gore Lomax, of Leeds) appeared for the appellant; David Lintott (instructed by the legal department of Wokingham Borough Council and Windsor and Maidenhead Royal Borough Council) appeared for the respondents.
Sally Dobson, barrister