R (on the application of O’Brien and another) v Basildon District Council; R (on the application of Casey and others) v Basildon District Council

The claimants in each case were gypsies who occupied caravans on adjoining plots of land that they owned in the green belt. Their occupation was in breach of enforcement notices that the defendant council had issued, and accordingly amounted to a criminal offence under the Town and Country Planning Act 1990. The defendants had also refused the claimants’ applications for planning permission in respect of that use. While appeals were pending against that refusal, the defendants decided to enforce compliance with the enforcement notices by taking direct action, pursuant to section 178 of the Act, to remove the caravans from the site. They gave notice to the claimants of their intention to do so. The claimants challenged the resolution by way of judicial review, contending that the defendants’ actions were disproportionate and breached their right to respect for their home under Article 8 of the European Convention on Human Rights. They submitted that it was disproportionate: (i) to proceed by way of direct action under section 178 in cases of residential eviction, and that local planning authorities ought instead to apply for an injunction under section 187(b), which had the procedural safeguard of subjecting the decision to evict to the scrutiny of the courts; and (ii) to enforce compliance at all in the instant case. They submitted that the defendants, when making their resolution, had failed to take into account a material consideration, namely the claimants’ good prospects of success in their planning appeal. Held: The claim was allowed. The single question to be decided was whether the decision to take action under section 178 was lawful. The Act did not state, either expressly or by necessary implication, that the section 178 power could not be used in residential cases, although it would not always be proportionate. There was no reason why a local planning authority could not select a power that had been given to them by parliament, and which did not require the intervention of the courts, where the criminal law had been breached. The decision-making process and the framework of planning law generally reflected proportionality. The enforcement of the criminal law was to be given considerable weight in considering proportionality and, provided that sufficient notice were given of a decision to take direct action, the availability of a judicial review challenge provided all the necessary procedural protection: South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101 and Chapman v United Kingdom 27238/95 (2001) 33 EHRR 18 considered. The matters to be taken into account by the local planning authority, in deciding whether to enforce compliance, would depend upon the enforcement measure that they were contemplating. The claimants’ prospects of success on their planning appeal might not have been relevant if a criminal prosecution had been envisaged. However, when proceeding under section 178, it was necessary to consider the occupiers’ prospects of success on appeal and the timescale within which that might be resolved. The defendants’ failure to consider those matters rendered their decision unlawful and disproportionate. Richard Drabble QC and Marc Willers (instructed by Community Law Partnership, of Birmingham, in the first action and by Bramwell Browne Odedra, of High Wycombe, in the second action) appeared for the claimants; David Elvin QC and Reuben Taylor (instructed by the legal department of Basildon District Council) appeared for the defendants. Sally Dobson, barrister