Planning control – Gypsies – Respondents living on unauthorised sites – Appellants issuing enforcement notices – Appellants seeking to remove caravans from land by direct action – Whether appellants seeking appropriate relief – Whether appellants considering needs of individual families – Appeals allowed
The respondents, who comprised 40 families of predominantly Irish travellers and gypsies, occupied unauthorised green-belt sites in the appellant council’s district. The appellants, having refused planning permission for the sites, served enforcement notices under section 172(1) of the Town and Country Planning Act 1990, which were upheld on appeal. Using their powers under section 178 of the 1990 Act, the appellants then sought to remove the respondents’ caravans from the land and to force the respondents to comply with the notices by removing the hardstanding and restoring the land to its natural state. The respondents applied for judicial review.
The Equality and Human Rights Commission (EHRC) was given leave to intervene in the light of the obligation to have due regard to the race equality duty under section 71(1) of the Race Relations Act 1976, as amended. It argued that the appellants had failed to comply with that duty.
Collins J granted the applications, holding that the appellants’ decision to invoke section 178 could not stand because they had failed properly to take into account all relevant matters. He concluded that although the appellants had had due regard to their race equality duty, their approach to need had been too restrictive since further consideration should have been given to the issue of alternative sites and whether any families could remain on the land in the short term. He held that because the plots on the sites were individually owned and occupied, and enforcement was against individuals, these individuals’ circumstances had to be considered: [2008] EWHC 987 (Admin); [2008] 19 EG 205 (CS). The appellants appealed.
Held: The appeals were allowed.
The judge had reached the correct conclusion on the race equality duty but, on the evidence, had erred in holding that consideration had not been given to the needs of individual families. The appellants’ decision to take action under section 178 of the 1990 Act was a lawful decision properly taken.
With regard to the scope of duties owed to gypsies and travellers, the court would be slow to grant protection to those, such as the respondents, who, in conscious defiance of the prohibitions of the law, had established a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the environmental rights of other people in the community. Moreover, general social policy did not lay down a positive obligation to provide as many sites as were sought by the gypsy community. The obligation that arose was not demand-driven to that extent: Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 considered.
The procedure that had been followed, namely the refusal of planning permission and the issuing of enforcement notices under section 172 of the 1990 Act, which had been flagrantly disregarded, could legitimately form the basis for a decision to take action under section 178 of the 1990 Act. In taking that decision, the persistent breaches both of planning control and the criminal law were relevant factors.
Given the planning context, the appellants had not erred in law in failing to give further consideration to alternative sites when they took the decision to take action under section 178. In his planning decisions, the secretary of state had plainly been mindful of factors that favoured the respondents when declining to grant planning permission: R (on the application of O’Brien) v Basildon District Council [2006] EWHC 1346 (Admin); [2007] 1 P&CR 16 considered.
The basis for action under section 178 had been present and there was no doubt that the appellants had been aware of their duties under the Housing Act 1996 and had intended to give effect to them. Evidence had been provided as to how that would be achieved and the appellants were not required to take further action while the proceedings were pending. The documents considered as a whole demonstrated that sufficient consideration had been given to the case of each respondent.
David Elvin QC, Paul Epstein QC and Reuben Taylor (instructed by the legal department of Basildon District Council) appeared for the appellants; Jan Luba QC and Alexander Offer (instructed by Davies Gore Lomax, of Leeds) appeared for the respondents in the first two appeals; Jan Luba QC and David Watkinson (instructed by South West Law, of Bristol) appeared for the respondents in the third appeal; Jan Luba QC and David Watkinson (instructed by Bramwell, Browne, Odedra, of Chesham) appeared for the respondents in the fourth appeal; Robin Allen QC, by written submissions (instructed by the Equality and Human Rights Commission) appeared for the intervener.
Eileen O’Grady, barrister
