PLANNING ENFORCEMENT AND GYPSIES:
RECENT CASE LAW
Introduction
1.
Circular 1/2006 (the “Circular”) recognises the importance of “effective enforcement
action” in order to remedy the conflict and distress associated with unauthorised
encampments (paragraph 4).
Any local planning authority (“LPA”) contemplating
such action will be aware that there are at least five enforcement options provided for
by the Town and Country Planning Act 1990 (the “Act”), namely:

Section 171E(2): the issue of a Temporary Stop Notice;

Section 172(1): the issue of an Enforcement Notice;

Section 178(1): enforcement by entry onto land to carry out the remedial steps
required by an Enforcement Notice;

Section 183(1): the issue of a Stop Notice, where it is expedient to do so before
the expiry of the period for compliance with an Enforcement Notice;

2.
Section 187B(1): application for an Injunction.
For LPAs and claimants alike, it is important to recognise that the European
Convention on Human Rights (“ECHR”) underpins the proper exercise of any of these
enforcement powers in the context of gypsies and travellers. The majority of case law
in this area therefore sees the High Court grappling with the relationship between the
Act and the ECHR.
3.
The aim of this paper is to provide an outline of the seminal principles and examine
the way in which those principles have most recently been developed.
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Scope of Article 8 in the Planning Context
4.
The duty to take account of Strasbourg jurisprudence in section 2 of the Human Rights
Act 1998 (the “HRA”) means that, while not strictly bound, domestic courts should
follow “any clear and constant jurisprudence” of the ECHR (R (Alconbury
Developments Ltd) v Secretary of State for the Environment, Transport and the Regions
*2003+ 3 AC 295 at *26+), and “should not without strong reason dilute or weaken the
effect of the Strasbourg case law” (R (Ullah) v Secretary of State for the Home
Department [2004] 2 AC 323 at [20]). The starting point is therefore Chapman v
United Kingdom (2001) 33 EHRR 18, which, although decided back in January 2001,
remains the most relevant ECHR authority in the context of planning enforcement.
5.
Chapman is a decision of the Grand Chamber, which considered whether enforcement
action taken under section 172(1) against a gypsy, whose caravan was situated on land
that she owned within the metropolitan green belt, amounted to a breach of Articles
6, 8, 14 and Article 1 of the First Protocol.
6.
The Court held that such action was not in breach of articles 6, 14 and Article 1 of the
First Protocol. However, it was unanimously held that Article 8 was engaged since:
The applicant’s occupation of her caravan is an integral part of her ethnic
identity as a gypsy, reflecting the long tradition of that minority of following a
travelling lifestyle. This is the case even though, under the pressure of
development and diverse policies or from their own volition, many gypsies no
longer live a wholly nomadic existence and increasingly settle for long periods in
one place in order to facilitate, for example, the education of their children.
Measures which affect the applicant's stationing of her caravans have therefore
a wider impact than on the right to respect for home. They also affect her ability
to maintain her identity as a gypsy and to lead her private and family life in
accordance with that tradition [73].
7.
The Grand Chamber had no trouble in finding that the enforcement action amounted
to an interference with the applicant’s rights under Article 8, which had been carried
out in accordance with the law, and pursued a legitimate aim [75] – [82]. The central
issue was whether that interference was necessary in a democratic society. It was
2
held that, in the field of planning, national authorities were to be accorded a wide
margin of appreciation because they are best placed to judge local needs and
conditions. The procedural safeguards in place were said to be especially material in
determining whether the national authority had remained within its margin of
appreciation [91] - [92].
8.
However, the Court went further by accepting that Article 8 placed a positive
obligation on national authorities to the following extent:
Nonetheless, although the fact of being a member of a minority with a
traditional lifestyle different from that of the majority of a society does not
confer an immunity from general laws intended to safeguard assets common to
the whole society such as the environment, it may have an incidence on the
manner in which such laws are to be implemented. As intimated in the Buckley
judgment, the vulnerable position of gypsies as a minority means that some
special consideration should be given to their needs and their different lifestyle
both in the relevant regulatory planning framework and in arriving at the
decisions in particular cases. To this extent there is thus a positive obligation
imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy
way of life (at [96]).
9.
It is important to note that the Court did not accept that this limited positive duty
meant that there would be an automatic breach of Article 8 where the number of
gypsies is statistically greater than the number of places available on authorised sites
[98]. The majority was also at pains to state that when considering proportionality it
was highly relevant whether the home was established unlawfully and held that:
The court will be slow to grant protection to those who, in conscious defiance of
the prohibitions of the law, establish a home on an environmentally protected
site. For the Court to do otherwise would be to encourage illegal action to the
detriment of the protection of the environmental rights of other people in the
community [102].
10.
The Court confirmed that the availability and suitability of alternative accommodation
is a relevant consideration for a national authority, the interference with Article 8
being most serious where no alternative accommodation is available [103].
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11.
Although not in the context of enforcement, the Court of Appeal recently considered
Chapman in Rafferty v Secretary of State for Communities and Local Governments
*2009+ EWCA Civ 809 and took a more expansive approach to the nature of a gypsy’s
rights under Article 8(1). The claimant challenged an Inspector’s decision in an appeal
under section 78 of the Act in respect of an application for change of use to a
residential gypsy caravan site. The Inspector found that there had not been a breach
of Article 8(1) since the appellant was not yet living at the proposed site. That
approach was endorsed by the High Court. The claimant’s position before the Court of
Appeal was that such approach to Article 8(1) was too narrow because it failed to take
account of their private and family life [23]. The SoS’ contention was that Article 8
does not protect a mere intended home [21].
12.
Giving the judgment of the Court of Appeal, Scott Baker LJ held that, if the High Court
was correct, an unauthorised encampment would be put in a more favourable
position that a person who sought planning permission in advance [24]; paragraph 102
of Chapman was an unpredictable corrective for that odd result [26]. His Lordship
considered it to be artificial to seek to dissociate the physical home from private and
family life, concluding that, “The central point seems to me to be that the appellants'
home is their caravans and it is from there that they carry on their private lives. That
is the right that is being infringed in this case and it seems to me it is being infringed
whether or not their caravans are already on the land in respect of which they seek a
change of planning use” *37+.
Compatibility of the Circular with Article 8
13.
It was in reliance upon the Chapman judgment that Ouseley J recently rejected
criticism of the definition of “gypsies and travellers” in paragraph 15 of the Circular1.
1
“Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only
of their own or their family’s or defendants’ educational or health needs or old age have ceased to travel
temporarily or permanently, but excluding members of an organised group of travelling show people or circus
people travelling together as such”.
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14.
In Wingrove v Secretary of State for the Communities and Local Government [2009]
EWHC 1467 (Admin), the Claimants challenged the Secretary of State’s (SoS) decision
not to quash an enforcement notice, which alleged an unauthorised change of use
from agriculture to a mixed agricultural/residential use, and required them to cease to
occupy a mobile home and to remove it from the land. The First Claimant had lived
for more than 40 years in bricks and mortar accommodation, but had started
occupying a mobile home less than a year prior to the service of the enforcement
notice. While appreciating the claimants’ feelings of identity with the gypsy and
traveller community and their wish to establish a lifestyle commensurate with those
feelings, an Inspector on behalf of the SoS upheld the notice because the claimant and
her partner showed no clear indications of a nomadic habit of life and therefore fell
outside the scope of the definition in the Circular [34] – [35].
15.
The claimant argued that the definition in the Circular was, in itself, incompatible with
Article 8 ECHR, contending that the Inspector had erred in law in failing to consider
their case in the light of the broader definition of “gypsies and travellers” in section
225(5) the Housing Act 2004, as provided by the Housing (Assessment of
Accommodation Needs) (Meaning of Gypsies and Travellers) (England) Regulations
20062.
16.
Ouseley J gave that argument short shrift. He held that it had not been put before the
Inspector and “was not an argument which, regardless of what the parties might put
before him, it could be said that the Inspector was obliged to consider as a material
consideration” *35+. While His Lordship noted that there is inevitably a connection
between how a development plan proceeds and the weight to be given to
development control decisions for which the development plan is making provision
[36], the relationship was plainly not an obligatory material consideration for the
Inspector in that case [38].
2
For the purposes of section 225 of the 2004 Act, “gypsies and travellers” mean “(a) persons with a cultural
tradition of nomads or of living in a caravan; and (b) all other persons of the nomadic habit of life whatever
their race or origin...”
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17.
Ouseley J concluded that the Inspector had not erred in law since:
(1)
The Circular did not involve a breach of Article 8 because, “The question of how
the balance is struck between the needs and rights of an individual and the
broader public interest of the protection of the environment is very much a
matter for the national authorities who are afforded a wide margin of
appreciation in this respect under Article 8(2)” *43+;
(2)
His Lordship also found that an assessment of whether there had been a breach
of Article 8 must be by reference to the application of policy to the facts of the
particular case; the considerations that are germane to a nomadic lifestyle being
adequately considered through the development control process by the
application of the definition in the Circular, with its emphasis on nomadic life
[45].
18.
In R (McCann) v Secretary of State for Communities and Local Government [2009]
EWHC 917 (Admin), Ian Dove QC also confirmed that the narrower definition in the
Circular was not in breach of Article 8 and held that:
It is important to note that the two definitions are provided for different
purposes. The circular is for use in development control. The definition in the
regulations is to inform the needs appraisal of the forward planning system. It is
right that the definition for forward planning needs to be wider to capture those
who wish to follow a nomadic way of life, but are currently in bricks and mortar
accommodation which is unsuitable for them. [14]
19.
The significance of the Wingrove and McCann cases in terms of enforcement is that:
(1)
LPAs, when considering the expediency of enforcement action, are unlikely to be
criticised if they approach the issue in terms of the definition in the Circular;
(2)
For appellants, merits arguments relating to the individual’s circumstances are
likely to enjoy better prospects than legalistic attacks upon the Circular.
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The availability of alternative ‘bricks and mortar’ housing
20.
An issue that is often raised in enforcement proceedings is the lack of alternative
accommodation and, more particularly, the gypsy’s cultural aversion to conventional
or ‘bricks and mortar’ accommodation.
21.
In Clarke v Secretary of State for the Environment, Transport and the Regions,
Tunbridge Wells Borough Council [2001] EWHC 800 (Admin), the High Court
considered whether taking into account the offer of conventional or ‘bricks and
mortar’ housing accommodation to gypsies may breach articles 8 and 14 ECHR.
22.
Burton J concluded that this could amount to a breach of articles 8 and 14 in the
following way:
In my judgment, in certain appropriate circumstances it can amount to a
breach of Articles 8 and 14 to weigh in the balance an hold against a Gypsy
applying for planning permission, or indeed resisting eviction from the Council
or private land, that he or she has refused conventional housing
accommodation as being contrary to his or her culture. Such circumstances, in
my judgment, are and should be, limited, just as they are if, for example, it is to
be alleged similarly to be impermissible, in relevant circumstances, to hold it
against or penalise a religious or strictly observant Christian, Jew or Muslim
because he or she will not, and cannot, work on certain days…. It is not and
cannot be a formality to establish this, and the onus is upon the person such as
a Gypsy who seeks to establish it. [30]
23.
The Court of Appeal endorsed the approach of the High Court [2002] EWCA Civ 819,
stating that it was entirely consistent with the decision in Chapman. It is helpful to
note the ground upon which the Inspector’s decision was, in fact, quashed. Buxton LJ
carefully pointed out that quashing order resulted from the lack of adequate
reasoning, noting that:
... a careful examination of the objections of the Clarke family to living in
conventional housing in order to determine the extent to which Article 8 is truly
engaged, and the nature of its engagement by the combination of their gypsy
identity and their opposition to conventional housing. Only when the Inspector
has made that determination in clearer terms than he adopted in his present
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letter will it then be possible for him properly to engage in the balancing
consideration that Burton J envisages in his paragraph 35 and that the European
Court of Human Rights envisages in its paragraph 98 [15].
Appellants and LPAs alike should note that the degree of particularity in the reasons
required to satisfy the duty under Article 8 is therefore likely to be extensive.
24.
The fact that a gypsy or traveller has given up, or is prepared to give up, a nomadic
way of life is not conclusive as to whether his or her rights under Article 8 will be
infringed. R (Margaret Price) v Carmarthenshire County Council [2003] EWHC 42
(Admin) is a housing case consequent upon the claimant traveller’s refusal of
conventional housing and the local authority’s decision thereafter to evict her from
occupation of a public open space. However, the Court provided useful general
commentary on the proper approach to take when assessing the extent of the
person’s aversion to bricks and mortar accommodation:
The error in the approach of the defendant in seeking to respect her gypsy way
of life was to regard the fact that she had evidenced a preparedness to give it up
to live in conventional housing in 2001 as sufficient reason for disregarding it
altogether when considering her wishes. Equally, had it reached the conclusion
that the claimant’s cultural aversion to traditional life was so powerful as to
present great difficulty in her living in conventional housing, it was not bound by
a duty to find her a pitch, but it would have been a significant factor in
considering how far it should go to facilitate her traditional way of life. [20]
25.
The court also held that, whilst there could be degrees of aversion to conventional
housing, the “fact that members of a family of an applicant, other than the applicant,
have given up the traditional way of life is not a particularly telling guide as to the
viewpoint of the applicant, although to may be relevant” [21]. Provided that a proper
examination of an individual’s circumstances is undertaken, the facts of the Wingrove
case demonstrate that it is, of course, permissible for a decision maker to conclude
that there is no cultural tradition of nomadism or aversion to bricks and mortar if the
facts support such a conclusion in a particular case [32].
26.
It is also worth mentioning that in South Cambridgeshire District Council v Secretary of
State for Communities and Local Government [2008] EWCA Civ 1010, the Court of
8
Appeal confirmed that there is no burden of proof on the applicant to prove the lack
of alternative sites for the stationing of caravans. Albeit decided in relation to a
section 78, Scott Baker LJ summarised the position, which is of general application, as
follows:
In my judgment the law is clear. The position is governed by section 38(6) of the
2004 Act.
The Development Plan is determinative unless material
considerations indicate otherwise. There is no burden of proof on anyone. It is
a matter for the planning authority, or in this case the inspector, to decide what
are the material considerations and, having done so, to give each of them such
weight as she considered appropriate. That, so it seems to me, is a matter of
planning judgment [36].
Section 187B(1): Injunctions
The general approach: Porter (No. 1)
27.
The old approach of readily acceding to an application for an injunction (see, for
example, Hambleton v Bird [1995] 3 PLR 8) is a thing of the past.
The obligations
under the HRA mean that the Courts must exercise judicial discretion and decide
whether in all the circumstances it is just to grant the relief sought.
28.
In what remains the leading case on the approach to this provision, South
Buckinghamshire v Porter (No. 1) [2003] 2 AC 558, the House of Lords emphasised that
the court had an original jurisdiction and unanimously endorsed paragraphs 38-42 of
the judgment of Simon Brown LJ in the Court of Appeal [38]. Simon Brown LJ stated
that:
I would unhesitatingly reject the more extreme submissions made on either
side. It seems to me perfectly clear that the judge on a section 187B application
is not required, nor even entitled, to reach his own independent view of the
planning merits of the case. These he is required to take as decided within the
planning process, the actual or anticipated breach of planning control being a
given when he comes to exercise his discretion. But it seems to me no less plain
that the judge should not grant injunctive relief unless he would be prepared if
necessary to contemplate committing the defendant to prison for breach of the
order, and that he would not be of this mind unless he had considered for
9
himself all questions of hardship for the defendant and his family if required to
move, necessarily including, therefore, the availability of suitable alternative
sites... Questions of the family's health and education will inevitably be of
relevance.
29.
His Lordship then cited the following non-exhaustive list of “countervailing
considerations” that would be relevant to the exercise of the Court’s discretion [38] –
[39]:

The degree and flagrancy of the postulated breach of planning control, which
“may well prove critical”;

Whether conventional enforcement measures had failed over a prolonged
period of time to remedy the breach; if so, the Court would “obviously be
readier to use its own, more coercive powers”; conversely, the Court might be
reluctant to use its powers in a case where enforcement action had never been
taken, unless there was some urgency in the situation sufficient to justify preemptive avoidance of an anticipated breach;

Health and safety considerations;

Whether the injunction was to prevent a gypsy moving onto the site, which
might involve less hardship, or whether it was to remove him after a long period
of occupation;

Previous planning decisions, the relevance of which depends upon how recent
they are; the extent to which considerations of hardship and availability of
alternative sites were taken into account; the strength of conclusions reached
on land use and environmental issues, and whether the defendant had, and
properly took, the opportunity to make a case for a temporary personal planning
permission;
10

The LPA’s decision to take injunctive relief, the relevance and weight of that
decision depending “above all on the extent to which they can be shown to have
had regard to all the material considerations and to have properly posed and
approached the Article 8(2) questions as to necessity and proportionality”;
30.
His Lordship added that [40]:
Whilst it is not for the court to question the correctness of the existing planning
status of the land, the court in deciding whether or not to grant an injunction
(and, if so, whether and for how long to suspend it) is bound to come to some
broad view as to the degree of environmental damage resulting from the breach
and the urgency or otherwise of bringing it to an end. In this regard the court
need not shut its mind to the possibility of the planning authority itself coming
to reach a different planning judgment in the case.
31.
While His Lordship accepted that, once the final planning decision is taken, the
legitimate aim of preserving the environment could only be achieved by removing
gypsies from the site, it does not follow that the Court must always accept the
achievement of that aim as outweighing whatever countervailing rights the gypsies
may have; nor is the Court bound to order injunctive relief [41].
32.
Specifically on the interaction between the Court’s discretion to grant injunctive relief
and the obligations under section 6(1) of the HRA, His Lordship stated that:
I prefer the approach suggested by the 1991 Circular: the court's discretion is
absolute and injunctive relief is unlikely unless properly thought to be
“commensurate”—in today's language, proportionate... Proportionality requires
not only that the injunction be appropriate and necessary for the attainment of
the public interest objective sought—here the safeguarding of the
environment—but also that it does not impose an excessive burden on the
individual whose private interests—here the gipsy's private life and home and
the retention of his ethnic identity—are at stake [41].
33.
For Lord Bingham, section 187B is compatible with Article 8 in that it “allows and has
always allowed the court in the exercise of its discretion in granting an injunction to
weigh up the public interest in securing the enforcement of planning policy and
11
planning decisions against the private interests of the individuals who are allegedly in
breach of planning control” *73+.
34.
It is perhaps of little comfort to the potential parties to injunction proceedings that
Simon Brown LJ accepted that striking the necessary balance between those
competing interests, so different in character, would not always be easy. However, he
considered that “a structured and articulated” approach by the court should result in
an appropriate conclusion [42].
35.
In Tonbridge and Malling BC v Davis [2004] EWCA Civ 194 Auld LJ helpfully distilled the
judgment of Simon Brown LJ in Porter (No. 1), as endorsed by the House of Lords, into
a two stage approach at the time injunctive relief is sought [37], namely:
(1)
“To look at the planning merits of the matter, and, in doing so, to accord respect
to the LPA’s conclusions”;
(2)
“To consider for itself, in the light of the planning merits and any other
circumstances, in particular, those of the defendant, whether to grant injunctive
relief”.
Unlawfulness of occupation
36.
When considering questions of hardship to the defendant, in South Buckinghamshire
District Council v Porter (No. 2) [2004] 1 WLR 1953, the House of Lords approached the
unlawfulness of that person’s occupation as did the European Court at paragraph 102
of Chapman.
Lord Brown recognised that, “... it seems to me that wherever the
occupier seeks to rely upon the very fact of his continuing use of land it must be
material to recognise the unlawfulness (if such it was) of that use as a consideration
operating to weaken his claim” *52+.
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Compliance with Court Orders
37.
When balancing the competing factors to be taken into account on a claim for a final
injunction, the Court of Appeal has emphasised that proper account must be taken of
the vital role of the court in ensuring compliance with court orders.
In Mid
Bedfordshire DC v Brown [2005] 1 WLR 1460 an interim injunction had been breached
and the High Court suspended the final injunction. The Court of Appeal allowed the
appeal against the suspension, with Mummery LJ recognising that, “The practical
effect of suspending the injunction has been to allow the defendants to change the
use of the land and to retain the benefit of occupation of the land with caravans for
residential purposes. This was in defiance of a court order properly served on them
and correctly explained to them” *26+. The Court was aware of the real risk that a
suspension of the injunction could be perceived as condoning the breach, which
would send out the wrong signal, both to others tempted to do the same and to lawabiding members of the public.
The importance of demonstrating that the Court
would not be prepared to tolerate contempt of its orders was a clear rationale for the
decision.
The Porter principles and Persons Unknown
38.
In South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429, the Court
of Appeal considered the applicability of the Porter (No. 1) approach when named
individuals occupied land, following the grant of an injunction under section 187B
against Persons Unknown in respect of that land, the terms of which were explained
to them. The named individuals sought to be added as defendants to the action at the
time of committal proceedings. In summary, the Court of Appeal held that:
(1)
The principles in Porter (No. 1) apply when the court is considering whether to
grant an injunction against named defendants, but do not apply in full when a
court is considering whether or not to grant an injunction against persons
unknown because the relevant personal information would, ex hypothesi, not be
available. However that fact makes it important for courts only to grant such
13
injunctions in cases where it is not possible for the applicant to identify the
persons concerned or likely to be concerned;
(2)
The correct course for a person who learns he is enjoined is to apply to the Court
for an order varying or setting aside the Order, at which point the Porter (No. 1)
criteria will apply when the Court considers whether to vary the injunction for
the future, and what, if any, penalty is appropriate for the contempt committed
when the person acted in breach of the injunction;
(3)
The principles are irrelevant to the question whether or not a person is in breach
of an injunction and/or whether he is in contempt of court, because those are
solely questions of fact.
Since the named occupiers had not applied to vary the Order, there was no proper
opportunity to consider the application of the Porter (No. 1) principles [33].
Failure by a LPA to take account of a material consideration
39.
In O’Brien v South Cambridgeshire DC [2008] EWCA Civ 1159, the Court of Appeal held
that a failure by the local planning authority to take into account material
considerations in deciding to apply for an injunction did not automatically invalidate
the application as the court exercised an original jurisdiction and may itself remedy
this failure.
40.
However, the legitimacy of the LPA’s decision is relevant to the court’s exercise of
discretion [41].
41.
The O’Brien case is in keeping with earlier decisions in which it was held that the
Courts should be very reluctant to allow judicial review to be used to drag out the
enforcement process. If a defendant to injunction proceedings wishes to argue that
the LPA was Wednesbury unreasonable in deciding to start the claim, or left matters
14
out of account, the Court could simply dismiss the application for an injunction as a
matter of discretion (see R v Basildon District Council ex p Clarke [1996] JPL 866).
Conduct of the LPA prior to seeking an injunction
42.
In South Cambridgeshire DC v Flynn [2006] EWHC 1320, Silber J rejected the
submission that the discharge by the local planning authority of all their duties
including those under the housing acts was a pre- condition to its use of section 187B.
43.
The High Court has also rejected a submission that because an injunction is an
equitable remedy the local planning authority must comply with the maxim ‘he who
comes to equity must come with clean hands’. In Bath & North East Somerset Council
v Connors [2006] EWHC 1595 Mr Justice Tugendhat held that:
This is not a submission which can be founded on Porter or any of the other
cases to which I have been referred. The jurisdiction under section 187B is
statutory. Although it is a discretionary remedy, the Claimant invoking it does so
to enforce public law. The Claimant is not seeking to enforce a private right. If
the Claimant were precluded from obtaining enforcement injunctions by their
failure to make other provision in accordance with the applicable statutes and
Circulars, it would be the public who would suffer, not the Claimant. I do not
understand para 63 of Circular 1/06 (or its predecessor para 29 of Circular 1/94)
to be importing the equitable doctrine. Rather I understand them to be drawing
attention to what may be the consequences (in the light of Porter) if there is an
absence of existing provision, that is to say no alternative site to which
Defendants can move. Silber J considered and rejected a similar submission in
Flynn at paras 56–61 [113].
Drawing it all together: a recent example of the High Court’s approach to section 187B(1)
44.
The recent High Court decision of Brentwood BC v Ball [2009] EWHC 2433
demonstrates how much the Courts have moved on in the light of Porter (No. 1).
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45.
First, Stadlen J conducted a useful and detailed analysis of the Porter considerations at
[25] – [44]. In particular, at [45], His Lordship lists 14 factors which he considers
emerge from Porter. As summarised they are:
(1)
The principal purpose of the jurisdiction to grant an injunction under section
187B is to promote compliance with planning law;
(2)
An injunction is the most draconian measure available to promote that end and
should usually be used as a last resort;
(3)
The greater the adverse environmental impact of the breach or anticipated
breach of planning law sought to be restrained, the greater the case for granting
an injunction;
(4)
It is not sufficient for a local planning authority to conclude that an injunction is
the only means of preventing an actual or anticipated breach of planning law it
must also consider whether any countervailing issues of hardship to the
Defendant are outweighed by the merits of an injunction;
(5)
At the heart of the wide discretion under s.187B is a delicate balancing exercise
between the public interest in upholding planning law and protecting the
environment and the private interests of the defendant;
(6)
In weighing this balance the court is not bound by the balance struck by the local
authority;
(7)
An injunction should only be granted if, in the judgment of the court, having
regard to all relevant circumstances it would be a proportionate remedy;
(8)
The following factors may point in favour of granting an injunction: where there
has been a history of prolonged or flagrant breach of planning control and
persistent non-compliance by the defendant or evidence that he has played the
system by wilfully exploiting every opportunity for prevarication and delay;
where conventional enforcement measures have failed over a prolonged period
to remedy the breach by the defendant of planning control; where there is some
urgency in the situation which is sufficient to justify either the pre-emptive
avoidance of an anticipated breach of planning control or the immediate
removal of a dangerous or particularly offensive development or one which is
causing a significant nuisance or disruption to neighbours or members of the
public; where there is clear evidence of suitable alternative accommodation for
the defendant and his family.
(9)
The following factors may point against granting an injunction: where there has
not been a history of prolonged breach of planning control, persistent noncompliance or playing of the system by wilfully exploiting every opportunity for
16
prevarication and delay by the defendant; where conventional enforcement
measures against the defendant have not been taken and found wanting; where
there is no urgency in the situation (for example because of a dangerous or
particularly offensive development or one which is causing a significant nuisance
or disruption to neighbours or members of the public) which is sufficient to
justify the compulsory removal of the defendant and his family from a site
where they are residing; where the local planning authority failed fully or at all
to consider or weigh in the balance the personal circumstances of the defendant
and his family and any hardship which might flow from the grant of an
injunction; where there is a real prospect of a successful appeal against the
refusal of planning permission; where the effect of forcing the defendant and his
family to leave the site would or might be to cause hardship or danger to the
defendant and his family; where there is no or no clear evidence of suitable
alternative accommodation for the defendant and his family.
(10) Unless at the time of giving his/her judgment, the judge would be prepared if
necessary to contemplate sending the defendant(s) to prison in the event of a
subsequent breach of the injunction, no injunction should be ordered;
(11) The more flagrant and persistent has been the record of ignoring or defying
enforcement notices or prosecutions, the greater is likely to be the case for
granting an injunction;
(12) It is not the function of the Court to second guess or go behind planning
decisions already taken by the local planning authority or the Secretary of State
on the advice of an inspector.
(13) The court should consider whether there is a real prospect that planning
permission will be granted or an appeal against the refusal of planning
permission will be successful;
(14) The court has the power to decide to adjourn the application for an injunction
until after the result of a planning appeal is known.
46.
Upon an application of those principles, His Lordship concluded that the LPA had erred
in assuming that a calculated and flagrant breach of planning control justified an
injunction, without first analysing the circumstances of the unauthorised siting of the
caravans, or the personal circumstances of the occupiers [48] – [49].
His Lordship
accepted that the defendants simply had nowhere else to go that would not put
themselves, one of whom was heavily pregnant and another about to have an
operation, in danger [124]; in those circumstances, on the material before him, he
would not have contemplated sending them to prison for breaching an injunction
[128].
17
47.
At [57] Stadlen J notes that failure to enforce against previous occupiers may point
against an injunction being urgent for the purposes of section 187B, as may the fact
that no interlocutory injunction was granted [58] – [59].
48.
It is also clear that Stadlen J was influenced by the Defendants’ efforts to identify
other land to purchase; their attempts to secure planning permission, and their
preference to comply with planning requirements.
49.
At [86] His Lordship considered that the unlawful nature of an occupation is not a
complete bar to the courts holding that there is sufficient hardship to outweigh the
arguments in favour of injunctive relief. Whilst it was accepted that where the nature
of the hardship flows from the unlawful occupation, less weight is to be accorded to
the hardship, this does not apply in the case of, for example, children who are not
guilty of or responsible for the unlawful occupation. In the case of such occupiers, the
court is free to accord their hardship such weight as it considers appropriate [87].
50.
Stadlen J also considered that a broad brush approach should be adopted to
considering whether the Defendants have a real prospect of a successful planning
appeal, which is another relevant factor in the balancing exercise for injunctive relief
[106].
Section 183(1)
51.
By section 183(4), “A stop notice shall not prohibit the use of any building as a
dwellinghouse”. In R (Wilson) v Wychavon DC and another [2007] QB 801 the Court of
Appeal considered whether that exemption of dwelling houses, but not residential
caravans, from the stop notice regime indirectly discriminates against gypsies. The
parties agreed, and the Court accepted, that section 183(4) was indirectly
discriminatory [27]. However, the Court held that there were material distinctions
between dwellings and caravans, in terms of the opportunities to take enforcement
action and their capacity to cause harm [68] – [69], and therefore cogent reasons for
drawing a bright line between the two [73]. The discrimination was hence justified as
18
it pursued a legitimate aim of protecting the public from serious harm to amenity and
there was a reasonable relationship of proportionality between the means employed
and the aim sought to be realised.
Section 178(1): Enforcement by Entry onto Land
52.
In O’Brien v Basildon DC (2007) 1 P & CR 16 Ouseley J considered submissions that it
was disproportionate for the LPA to have exercised its powers under section 178(1)
rather than under section 187B, since the procedural safeguards under section 178 is
limited to the Court’s conventional supervisory jurisdiction.
Mr Drabble suggested that section 187B provided the procedural safeguard of
civil proceedings and the interposition of the court between the local planning
authority and those to be removed, and, for that reason he submitted that
section 187B was meant to be followed in order for the interference with Art.8
rights to be justified. I reject Mr Drabble's submission that section 178 should
never be used, and never could be used proportionately in a residential eviction
case and that only section 187B should be used, apart from criminal
proceedings. There is nothing in the wording of the sections which creates such
a limit on section 178 or an exclusive power in relation to section 187B, whether
the residential occupier is a trespasser or not. The option of seeking an
injunction does not create such a limit by any necessary implication. There may
be circumstances in which section 178 is a proper, rapid and effective step. I do
not accept that the interposition of the court is necessary to make the removal
of residential caravans present on their owners' land in breach of the criminal
law, a proportionate interference with Article 8 rights [151].
53.
It was also made clear that as part of a LPA’s decision to use section 178 they must
consider both the prospects of success and the timing of any relevant planning
application or appeal [184] – [189].
54.
In R(McCarthy) v Basildon District Council [2009] EWCA Civ 13, the Court of Appeal
emphasised the reluctance of the court to grant protection to those who act in
“conscious defiance of the prohibitions of the law” and that there is no “positive
obligation of general social policy to provide as many sites as the Gypsy community
seek. The obligation that arises is not demand driven to that extent” [68] – [69].
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55.
The Court of Appeal clarified that, as the Circular states that sites are to be provided
through the development plan process, failure to further consider other alternative is
not unlawful:
I agree with the approach to this issue of Keene LJ in O'Brien, including his
reference to the planning system being development plan-led and the likely
exacerbation of controversy by by-passing the system. Whether an attempt
should be made to bring forward DPD allocations (paragraph 43 of Circular
01/2006) may be the subject to debate but failure to do so does not, in my
judgment, and in this particular context, render a decision to act under section
178 unlawful. [71]
56.
The Court of Appeal also noted that ensuring appropriate provision for the
accommodation of gypsies and travellers by way of DPDs is likely to be a slow process
and that:
It cannot provide a swift response to the need which exists as a result of the
overall inadequacy of the number of lawful sites as compared with the demand
for such accommodation. However, this is the current policy. It carries with it
the need to observe the time-consuming statutory processes intrinsic to the
formulation of detailed planning policies on a regional and local basis. But by
doing so, first, it proceeds on the basis that a problem of this kind cannot
properly be coped with unless a regional view is taken as to how the need
should be met. Secondly, controversial and difficult as the process may be, it
may be hoped that, if the provision which is to be made is established as a result
of these regional and then local processes, they will be the more robust and
sustainable. [85]
57.
It was also emphasised that when considering whether to take action under section
178 the local planning authority must have regard both to its duties under the
homelessness legislation and the need to consider cases individually [72].
Section 172(1)
58.
Clee v First Secretary of State [2008] EWHC 117 (Admin) is a short but useful case
decided in the context of section 172. The claimant had appealed to the SoS against
two enforcement notices alleging an unauthorised change of used from nursery and
landscaping use to use as a residential caravan site. The appeal was dismissed, save
20
that the Inspector extended time for compliance with the notice under ground (g).
On appeal under section 289, the claimant contended that the Inspector had erred in
law in failing to have regard to paragraphs 41 to 46 of the Circular and, thereby, failed
to consider in a lawful manner whether or not a permission limited in time ought to
have been granted. On a fair reading of the decision letter, Wyn Williams J found that
the Inspector had considered whether or not to grant a temporary planning
permission [14]. Endorsing the decision of Mr George Bartlett QC (sitting as a Deputy
High Court Judge) in R (Doncaster Metropolitan Borough Council) v First Secretary of
State [2007] EWHC 1034 (Admin), His Lordship also held that:
The obligation, if that is the correct word, upon a decision maker when faced
with an application for planning permission for a caravan site for gypsies and
where there is a demonstrable unmet need for such a site but no readily
available alternative to the application site is to “give consideration to granting a
temporary permission”. The important phrase is “give consideration to
granting”. It is clear, in my judgment that the decision maker does not have to
grant permission even in circumstances where there is a demonstrable need for
a site and no alternative is available [15].
The Inspector’s conclusion that the objections to the development were compelling
and could not be overcome by granting a temporary planning permission, was
therefore a matter of planning judgment that could not be disturbed by the Court
[16].
Duty under Section 71(1) of the Race Relations Act 1976 (as amended)
59.
Article 8 is not the only relevant duty. Several recent cases have considered the role
of section 71(1) of the Race Relations Act 1976 (the “1976 Act”) in the context of
enforcement proceedings involving gypsies.
As from 1 October 2010, the 1976 Act
has been repealed by Schedule 27, paragraph 1 of the Equality Act 2010 3, save that
section 71(1) and Schedule 1A have been preserved in an amended form by Article 15
3
Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental
Provisions and Revocation) Order 2010/2317, Article 2(15)(f).
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of the Equality Act (Consequential Amendments, Saving and Supplementary
Provisions) Order 2010.
60.
Section 71(1) (as amended) provides that:
Every body or other person specified in Schedule 1A or of a description falling
within that Schedule shall, in carrying out its functions, have due regard to the
need—
(a)
to eliminate unlawful discrimination and victimisation; and
(b)
to promote equality of opportunity and good relations between persons of
different racial groups.
Ministers of the Crown and Government Departments are caught by paragraph 1(1) to
Schedule 1A; local authorities by paragraphs 12 – 32 and 34 – 44.
There is no
question that gypsies and travellers, as defined in the Circular, are an ethnic group for
the purposes of section 9(3) of the Equality Act 2010.
61.
In R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA
Civ 141 (albeit in the context of an appeal under s.288), the Court of Appeal
considered that an Inspector was bound to perform the statutory duty in section 71(1)
whether or not it was raised as an issue as the parties [29].
62.
However, the nature the duty under section 71(1) is limited to a duty to have due
regard to the need to achieve the goals of eliminating unlawful racial discrimination
and to promoting equality of opportunity and good relations and is not a duty to
achieve a result. Dyson LJ said:
In my judgment, it is important to emphasise that the section 71(1) duty is not a
duty to achieve a result, namely to eliminate unlawful racial discrimination or to
promote equality of opportunity and good relations between persons of
different racial groups. It is a duty to have due regard to the need to achieve
these goals. The distinction is vital. Thus the Inspector did not have a duty to
promote equality of opportunity between the appellants and persons who were
members of different racial groups; her duty was to have due regard to the need
22
to promote such equality of opportunity. She had to take that need into
account, and in deciding how much weight to accord to the need, she had to
have due regard to it.
In considering the question of, “What is due regard?” His Lordship held:
In my view, it is the regard that is appropriate in all the circumstances. These
include on the one hand the importance of the areas of life of the members of
the disadvantaged racial group that are affected by the inequality of opportunity
and the extent of the inequality; and on the other hand, such countervailing
factors as are relevant to the function which the decision-maker is performing
[31].
63.
Finally the Court confirmed that, although it is good practice to do so because it makes
it more likely that the relevant factors have been taken into account, a failure by an
Inspector to refer expressly to section 71 is not determinative of a failure to carry out
his statutory duties within that section [38]; to hold otherwise would be to sacrifice
substance to form [36].
64.
That same approach has been confirmed by the Court of Appeal in R(McCarthy) v
Basildon District Council [2009] EWCA Civ 13, as above, in the context of action under
section 178. Section 71(1) also applies to section 187B when a LPA is considering
whether or not to seek an injunction to restrain a breach of planning control: O’Brien v
South Cambridgeshire DC [2008] EWCA Civ 1159 at [35].
65.
The wording of the statute is, of course, sufficiently broad in scope that there is no
good reason to assume that the duty should not apply to all enforcement or planning
decisions in this context.
66.
In the McCarthy case, the Court of Appeal endorsed the High Court’s judgment that
the duty under section 71(1) had been fulfilled, in substance, by setting out the
relevant obligations to consider the effect of the eviction on the claimants [56] [67].
There is evidently significant overlap between conducting a full and proper balancing
exercise in individual cases for the purposes of Article 8 and complying with the duty
under section 71(1).
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Conclusion
67.
So important is Article 8 in the context of enforcement action against the occupiers of
Gypsy sites that it ought to be at the forefront of any LPA’s decision-making. The duty
under section 71(1) is also important, although that duty can arguably be discharged
in the process of properly considering the effect of enforcement upon the individuals
on a case by case basis. In my view, all enforcement decisions against residential
caravans require reasons with a high degree of particularity in order to be lawful. My
recommendation is therefore that LPAs ought to ensure that their reasons are justified
thoroughly and clearly, especially in respect of Article 8. Meanwhile, claimants should
pay careful attention to the quality of the reasoning supporting a decision on
proportionality grounds; the weight of authority suggests that challenges against the
quality of that process will tend to enjoy better prospects than attacking the legal
framework upon which such decisions are based.
15 October 2010
This seminar paper is made available for educational purposes only. The views expressed in it
are those of the author. The contents of this paper do not constitute legal advice and should
not be relied on as such advice. The author and Landmark Chambers accept no responsibility
for the continuing accuracy of the contents.
KATRINA YATES
LANDMARK CHAMBERS
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