Gypsy caravans — Breach of enforcement notice — Eviction by direct action — Section 178 of Town and Country Planning Act 1990 — Compatibility with Article 8 of European Convention on Human Rights — Claim dismissed
The claimant was one of a group of gypsies that purchased a site in the defendant council’s area and moved onto it with caravans. The group’s application for residential planning permission was refused on appeal, and the defendants issued enforcement notices. The time for compliance with the notices expired without the group having vacated the land. The defendants gave notice that unless the gypsies left the site by a given date, the defendants would exercise their powers, under section 178 of the Town and Country Planning Act 1990, to evict the group by direct action. The defendants also refused a further application in respect of the site, this time for a temporary permission, and informed the group that they would not grant any further extension of time prior to taking enforcement action, even if the latest refusal of permission was appealed. The group did appeal and obtained an order restraining the defendants from proceeding with the eviction. It then applied for a permanent permission for another site. The defendants again indicated that, subject to the court order, they were not prepared to delay enforcement action while that application was being determined.
The claimant brought judicial review proceedings to challenge the defendants’ decisions not to postpone eviction on the grounds that: (i) the exercise of the section 178 power to effect a residential eviction, at least without seeking the prior approval of the court, would always be disproportionate and therefore incompatible with Article 8 of the European Convention on Human Rights, and that the statute should be “read down” accordingly; and (ii) the defendants had failed to have regard to their duty under section 71 of the Race Relations Act 1976, since they had not assessed the effect of their eviction decision on race relations, racial equality and equality of opportunity. After the hearing and before judgment was given, the defendants decided to grant the planning permission sought for the alternative site.
Held: The claim was dismissed.
(1) The terms of section 178 did not exclude residential evictions from its ambit. The section bit only once the activity to be removed had become a criminal offence. By that point, the planning merits of issuing an enforcement notice had already been considered, those merits had had an opportunity of being considered in the appeal system, and the appropriateness of any consequent enforcement measures had been taken into account. No application to the court was necessary to make the use of the section 178 powers lawful, and the fact that the council had the option of seeking an injunction did not compel them to do so: R (on the application of O’Brien) v Basildon District Council [2006] EWHC 1346 (Admin) applied. It was not possible to “read down” section 178 to exclude the possibility of using the power of direct action for a residential eviction; that would be possible only if it were necessary to avoid the otherwise lawful use of the provision from bringing about an eviction in breach of the occupiers’ Article 8 rights. It was unnecessary since the discretionary nature of the section 178 power meant that if an authority proposed to use it in an unlawful way, their decision would be judicially reviewable on the ground that it would breach Article 8 without a proportionate justification, in which case interim relief would be available. Moreover, the potential for a discretionary statutory power to be used unlawfully did not entail reading into the statutory provision a requirement that it be used only after the sanction of the court had been obtained. There were no grounds for quashing the defendants’ decisions in the instant case.
(2) Section 71 of the 1976 Act required a process of consideration, covering the matters listed in the section, to be carried out at the time when decisions that could affect race relations were being taken. However, that process could be carried out without explicit reference to the section provided that the matters to which it was addressed were considered and due regard was given to them. Although it might not always be the case that a particular statutory regime gave an adequate opportunity for the section 17 factors to be considered, in the instant case it did since the relevant planning policy framework, and the planning decisions in question, had covered those issues.
(3) The claimant’s challenge failed, but the change in circumstance brought about by the grant of permission for the alternative site required the defendants to reconsider whether they wished to take action under section 178. They could not rely upon their previous decisions because new material considerations were to be weighed in the light of all the circumstances.
Charles George QC and Mark Willers (instructed by The Community Law Partnership, of Birmingham) appeared for the claimant; Simon Bird (instructed by the legal department of South Norfolk Council) appeared for the defendants.
Sally Dobson, barrister
