Planning control – Breach – Gypsies – Claimants living on unauthorised sites – Defendants issuing enforcement notices – Defendants seeking to remove caravans from land by direct action – Whether defendants seeking appropriate relief – Whether defendants complying with race equality duty – Applications granted
The claimants, who comprised more than 40 families of predominantly Irish travellers and gypsies, were resident on unauthorised green-belt sites in the defendant council’s district. The defendants’, having refused planning permission for the sites, served enforcement notices, which were upheld on appeal. The defendants sought to remove the claimants’ caravans from the land and to enforce compliance with the notices by removing the hardstanding that had been placed there so as to restore the land to its natural state. They opted to use section 178 of the Town and Country Planning Act 1990, which empowered the local planning authority, where steps required by an enforcement notice had not been taken within the compliance period, to enter onto the land in question and to take those steps themselves.
The claimants applied for judicial review. They contended that the use of section 178, rather than applying for injunctive relief under section 187B, was inappropriate since the effect would be to evict the claimants from their residences; the use of section 187B would have given the court a discretion that was not available to it in a section 178 decision.
The Equality and Human Rights Commission (EHRC) was given leave to intervene because the claims raised issues of public importance, concerning, in particular, the scope of the obligation to have due regard to the race equality duty under section 71(1) of the Race Relations Act 1976, as amended. The intervener argued that the defendants had failed to comply with that duty or to explain why they had given greater weight to planning policy than to the need to promote good race relations.
Held: The applications were granted.
In principle, it was not disproportionate to use section 178 rather than section 187B. Parliament had granted the power of direct enforcement and the remedy of judicial review provided adequate protection. On a section 187B application, the court had an original and discretionary and supervisory jurisdiction. The discretion was not absolute and had to be exercised with due regard to the fact that its purpose was to restrain actual or threatened breaches of planning control. Proportionality required not only that the injunction be appropriate and necessary in the public interest but also that it did not impose an excessive burden on the individual whose private rights were at risk. Since an eviction inevitably constituted an interference with the individual’s right to private and home life under Article 8 of the European Convention on Human Rights, the court, as a public body, also had to consider on a judicial review application whether the enforcement action was proportionate: R (on the application of O’Brien) v Basildon District Council [2006] EWHC 1346 (Admin); [2007] 1 P&CR 16 applied.
In the present case, the approach to need had been too restrictive. Further consideration should have been given to whether alternative sites could be found and whether any families could be allowed to remain in the short term. It had to be remembered that the plots on the site were individually owned and occupied; enforcement was against individuals and their circumstances had to be considered.
A failure to refer specifically to the section 71 race equality duty could not render the decision unlawful provided that it was apparent that the decision maker had had due regard to the relevant statutory duty. In the instant case, it was impossible to conclude that the defendants were merely paying lip service to that duty. The officer’s report had correctly identified the considerations that needed to be taken into account and it had not been suggested that the decision to evict had been perverse: R (on the application of Smith) v South Norfolk Council [2006] EWHC 2772 (Admin); [2006] 46 EG 209 (CS) applied.
Alexander Offer (instructed by Davies Gore Lomax, of Leeds) appeared for the claimants in the first two claims; David Watkinson (instructed by South West Law, of Bristol) appeared for the claimants in the third claim; David Watkinson (instructed by Bramwell, Browne, Odedra, of Chesham) appeared for the claimants in the fourth claim; David Elvin QC, Paul Epstein QC and Reuben Taylor (instructed by the legal department of Basildon District Council) appeared for the defendants; Robin Allen QC and Marc Willers (instructed by the legal department of the Equality and Human Rights Commission) appeared for the intervener.
Eileen O’Grady, barrister