Claire Wilson (Claimant) Wychavon District Council (Defendants) First Secretary of State (Interested Party)
| Jurisdiction | England & Wales |
| Judgment Date | 20 December 2005 |
| Neutral Citation | [2005] EWHC 2970 (Admin) |
| Docket Number | Case No: CO/2845/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 December 2005 |
[2005] EWHC 2970 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice,
Strand, London WC2A 2LL
MR. JUSTICE CRANE
Case No: CO/2845/2004
Mr. Charles George QC and Mr. Marc Willers (instructed by the Community Law Partnership) appeared for the Claimant.
Mr. Philip Sales and Ms Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the Defendant.
Mr Justice Crane
General
1. This is now a claim for a declaration that section 183(4) of the Town and Country Planning Act 1990, as amended, is incompatible with article 14 of the European Convention on Human Rights to the extent that it provides that a stop notice shall not prevent the use of any building as a dwelling house but does not provide the same protection to those dwelling in a caravan, thus having a disproportionate effect on Romany Gypsies and Irish Travellers.
2. The claim involves consideration of
“the very difficult question of how potential family and cultural rights of gypsy and Romany populations interact with and are affected by the municipal planning laws of this country”, per Buxton LJ in Clarke v. Secretary of State for Transport, Local Government and the Regions and Tunbridge Wells BC [2002] JPL 1365.
3. The history of the proceedings is this. On 28 May 2004 a planning application was lodged and land was occupied by the Claimant and other Romany gypsies. On 1 June two enforcement and two stop notices were issued by the Wychavon District Council. A claim for judicial review was lodged. On 30 June Morland J. granted an injunction against the Claimant and others, but stayed its operation to give time for further proceedings. On 14 July Collins J. granted permission to apply for judicial review against the First Defendant. There were then orders giving directions and finally on 4 November 2004 Sullivan J. by consent ordered that the claim for judicial review against the Defendants should be dismissed, but granted permission for the present claim for a declaration.
The history of the legislation
4. Under Part VII of the 1990 Act, as amended, there are four principal methods of enforcement of planning control by local planning authorities:
(i) an enforcement notice under section 172;
(ii) an injunction;
(iii) a stop notice;
(iv) a temporary stop notice.
5. Although injunctions had been available in some circumstances before 1991, those circumstances were clarified and widened by the Planning and Compensation Act 1991.
6. Stop notices were first introduced by the Town and Country Planning Act 1968. They are not free-standing, since a stop notice can only be issued if an enforcement notice has been served or at the same time as an enforcement notice is served. When stop notices were extended to cover changes of use, by the Town and Country Planning (Amendment) Act 1977, Parliament provided an exemption for both dwelling houses and some caravans. After that amendment, section 90(2) of the Town and Country (Amendment) Act 1971 read:
“(2) A stop notice shall not prohibit –
(a) the use of any building as a dwellinghouse, or
(b) the use of land as the site for a caravan occupied by any person as his only or main residence (and for this purpose ‘caravan’ has the same meaning as it has for the purposes of Part I of the Caravan Sites and Control of Development Act 1960) …”.
7. In February 1989 the Report of Robert Carnwath QC Enforcing Planning Control was published. In Chapter 7 at paragraph 9.1 he said that the stop notice procedure offered a planning authority the best means of urgent action where that was justified. He considered that the failure to use that procedure effectively was one of the main reasons for criticism of the system. In paragraph 9.8 he proposed two amendments to section 90(2), one of which was to limit the exemptions. He considered that experience had shown that there was little risk of the stop notice procedure being over-used by authorities and that the objective should be to remove impediments to action in appropriate cases. He continued (at 9.10):
“It has also been suggested by a number of submissions that section 90(2)(b), which provides an exemption for residential caravans, should be repealed. In Runnymede BC v. Smith [1986] JPEL 592, it was held that this provided protection even for caravans which had come on to the site with knowledge of the stop notice, and an injunction was refused on these grounds. In my view, this exception is an unnecessary restriction on the use of the power to prevent serious injury to amenity in appropriate cases. The potential damage caused by unlawful caravan sites can be considerable, and the risks of abuse are not significantly greater than in other cases where the stop notice procedure applies, for example where livelihoods are at stake”.
8. Earlier in his report, at paragraph 2.7 in Chapter 4, he had noted that
“… the preponderance of cases concerned with residential caravans is in many cases a reflection of the shortage of affordable housing, or of designated caravan sites. Local authorities are understandably reluctant to take action which has the effect of depriving a family of its only home, or adding to the problems of their own housing department. The problem may also be related to the failure of the local authorities to fulfil their duties to provide caravan sites for gipsies under the Caravan Sites Act 1968”.
9. The consolidating 1990 Act continued the dual exemption (in section 183), but the 1991 Act substituted a new section 183 which had the effect of omitting the exemption for the use of land as a caravan site, while retaining the exemption for the use of any building as a dwellinghouse. Section 183(4) now reads, simply:
“A stop notice shall not prohibit the use of any building as a dwellinghouse”.
10. The Human Rights Act 1998 incorporated the ECHR into English law. Article 8 reads:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
Article 14 reads:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion. Political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
11. Temporary stop notices were introduced by the Planning and Compulsory Purchase Act 2004, section 52, which inserted sections 171E to 171H in the 1990 Act. Section 171F(1) reads:
“(1) A temporary stop notice does not prohibit –
(a) the use of a building as a dwelling house;
(b) the carrying out of an activity of such description or in such circumstances as is prescribed”.
Such circumstances were prescribed by the Town and Country (Temporary Stop Notice) (England) Regulations 2005:
“ Circumstances in which temporary stop notice does not prohibit stationing a caravan
2. —(1) The stationing of a caravan on any land in the circumstances specified in paragraph (2) is prescribed for the purposes of section 171F(1)(b) of the Town and Country Planning Act 1990.
(2) The circumstances are that –
(a) the caravan is stationed on the land immediately before the issue of the temporary stop notice; and
(b) the caravan is at that time occupied by a person as his main residence;
unless the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious so as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect”.
Article 14
12. That gypsies and travellers require some special consideration is common ground. In Connors v. United Kingdom (2005) 40 EHHR 189, the European Court of Human Rights said
“84. 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 framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Art.8 to facilitate the gypsy way of life”.
Since this is common ground, it is not necessary to review the evidence supporting this proposition.
13. Mr.Philip Sales on behalf of the Secretary of State accepts that a higher proportion of gypsies and travellers rather than any other relevant group would be likely to be affected by stop notices served under section 183, as amended, on caravans used for residential purposes. He accepts that although section 183 appears on its face to be a neutral provision, since it has a greater impact on gypsies and travellers than on the general population, it is a provision which is indirectly discriminatory in its effect in relation to a status falling within the scope of Article 14 and hence that there is an onus on the State to give an objective justification for the rule as its formulated.
14. In Ghaidan v. Godin-Mendoza [2004] 2 AC 557 Lord Nicholls said that where the alleged violation of Convention rights comprises differential...
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