Gypsies – Occupation of site in breach of planning control – Injunction – Section 187B of Town and Country Planning Act 1990 – Section 71 of Race Relations Act 1976 – Respondent local planning authority applying for injunction – Injunction granted – Whether application invalidated by failure to take account of duties under 1976 Act – Whether court entitled to exercise discretion to grant injunction – Appeal dismissed
The appellants were gypsies who, since 2003, had occupied land in breach of planning control. Planning permission had been refused for use as a gypsy caravan and the respondent local planning authority had issued an enforcement notice. Appeals by the appellants to the secretary of state had been refused in 2005. A challenge to that decision, under section 288 of the Town and Country Planning Act 1990, had been dismissed in 2006, after the judge found that the secretary of state had performed the balancing exercise required to satisfy Article 8 of the European Convention on Human Rights and that the decision was not legally flawed. Permission to appeal was refused.
The appellants did not comply with the enforcement notice. In July 2007, the respondents applied to the court for an injunction under section 187B of the 1990 Act. Before doing so, they considered various reports from their officers that set out the available options and their implications, inviting consideration of various matters including the needs and personal circumstances of the appellants and the duties imposed by the Race Relations Act 1976.
The judge granted an injunction requiring the appellants to cease using the land for the siting of residential mobile homes and caravans. In doing so, he found that the requirement for local authorities to consider the effect upon race relations of their policies and the way in which their functions were carried out, as provided by the code of practice issued under section 71C(1) of the 1976 Act, did not apply to the respondents’ decision to seek an injunction. Permission to appeal was granted on the limited ground that the respondents had been obliged to consider making an alternative site available before seeking injunctive relief, by virtue of section 71 of the 1976 Act and/or the power to provide caravan sites under section 24 of the Caravan Sites and Control of Development Act 1960. The appellants contended that a failure to take those statutory provisions into account rendered the respondents’ decision to seek an injunction ultra vires, such that the court had no power to grant an injunction. Alternatively, the court should have exercised its discretion to refuse an injunction.
Held: The appeal was dismissed.
A failure by a local planning authority to take into account a material consideration would not deprive the court of jurisdiction to determine their application for an injunction. Section 187B gave a broad discretion to both local planning authorities and the courts. It was possible for the court hearing the application to cure defects in the local planning authority’s consideration by taking those matters fully into account when deciding how to exercise its discretion: R v Basildon District Council, ex parte Clarke [1995] JPL 866 and South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101 applied.
In any event, the respondents had not failed in their statutory duties under section 71 of the 1976 Act or left out of account any relevant consideration in deciding whether to apply for an injunction. Although the judge had erred in holding that they were not obliged to carry out a race impact assessment, the approach adopted by the respondents amounted in substance to such an assessment even though it was not produced in that form. It was unnecessary, in order to comply with section 71, for the body in question to refer to the section expressly, so long as it in substance had due regard to the relevant statutory considerations: R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2008] 2 P&CR 6 applied. Section 24 of the 1960 Act did not materially add to the appellants’ case because it was concerned only with the availability of land and the physical provision of sites and did not deal with the identification of sites that were suitable in planning terms.
Although the discretion to grant or refuse an injunction lay with the court, not the local planning authority, the legitimacy of the latter’s decision to apply for an injunction was relevant to the exercise of the court’s discretion. Considerable weight should be attached to the respondents’ decision in the instant case because they had taken into account all material considerations and had approached the issues in a balanced and proportionate way. Moreover, it had been made in the context of a decision by the secretary of state on the planning appeal, which itself took into account the ethnic status of the appellants and their personal needs. The deputy judge had given detailed consideration to the appellants’ personal circumstances. His error with regard to the need for a race impact assessment did not vitiate the conclusion that he had reached. His exercise of discretion had fully taken account of the ethnic considerations relevant to the case and the effect of an injunction upon the appellants.
Robin Allen QC and Stephen Cottle (instructed by South West Law) appeared for the appellants; Saira Sheikh (instructed by Sharpe Pritchard, as agent for South Cambridgeshire District Council) appeared for the respondents.
Sally Dobson, barrister
