Jane Eastwood v The Royal Borough of Windsor and Maidenhead
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Floyd,Lady Justice Arden DBE |
| Judgment Date | 10 May 2016 |
| Neutral Citation | [2016] EWCA Civ 437 |
| Docket Number | Case No: C1/2015/0721 |
| Date | 10 May 2016 |
| Court | Court of Appeal (Civil Division) |
[2016] EWCA Civ 437
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRTIVE COURT
HIS HONOUR JUDGE MILWYN JARMAN QC
CO42892013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Floyd
and
Lord Justice Sales
Case No: C1/2015/0721
The Queen on the application of
Stephen Cottle (instructed by Lester Morrill Inc Davies Core Lomax) for the Appellants
David Lintott (instructed by Wokingham Borough Council and Royal Borough of Windsor) for the Respondent
Hearing date: 26 April 2016
This is an appeal from the judgment of HHJ Milwyn Jarman QC sitting as a judge of the Administrative Court in which he dismissed the claim brought by the appellant and another seeking judicial review of a decision of the respondent local planning authority ("the Council") to use its powers under section 178 of the Town and Country Planning Act 1990 ("the TCPA") to clear agricultural land located in the Green Belt near Waltham St Lawrence ("the land") of caravans occupied by the appellant and family members which have been stationed there in breach of planning controls since 2009. The appellant and other occupants of the caravans are Romany Gypsies.
The appellant says, correctly, that the Council failed to make sufficient and appropriate provision in its area for traveller sites which could accommodate the caravans in issue. It is part of the occupants' traveller way of life that they would not regard provision of bricks and mortar accommodation as acceptable. The occupants of the caravans include children who attend the local school and an elderly lady who is a family member suffering from Alzheimer's disease. If enforcement action is taken by the Council to evict them from the land in exercise of its powers under section 178, the appellant says that they will be driven to camp at the road-side. That will be particularly disruptive for the children and very distressing for their elderly relative, given her mental condition.
Factual background
The procedural history is a significant part of the factual background to this appeal.
The appellant and others stationed their caravans on the land, which was then an open greenfield site, on about 19 December 2009. They did so and installed hardstandings without planning permission. The Council obtained an interim injunction on 22 December 2009 to prevent more caravans being brought onto the land and prohibiting further works of construction or development.
The Council issued an enforcement notice on 24 December 2009, requiring cessation of the use of the land for residential purposes, the removal of all caravans and hardstandings and the return of the land to grassland. The period for compliance was two months.
On 25 February 2010 the Council refused an application for planning permission to use the land as a residential caravan site. In parallel with that application, one of the occupants of the caravans (Mr Mark Picket) appealed to the Secretary of State against the enforcement notice under section 174 of the TCPA. The Secretary of State referred the appeal to an Inspector, Mr Paul Morris, for an inquiry and report.
The Inquiry was held over a number of days in November 2010 and January 2011. The Inspector's Report is dated 17 March 2011. The Inspector's Report is a lengthy document which carefully examines all material aspects of the case, including the personal circumstances of the occupants of the caravans, the failure of the Council to identify adequate placements for gypsies and travellers on approved sites and the likely impact upon the occupants if they were not granted permission to remain with their caravans on the land. The Inspector noted that new development plan documents, including allocations relating to gypsy and traveller accommodation, were due to be prepared by the Council by the end of 2012. He found that the impact of the development on the Green Belt was material.
The Inspector considered whether, on the appeal, full planning permission should be granted for the development; alternatively whether temporary planning permission should be granted; alternatively, under ground (g) of the appeal, whether a period of grace should be allowed for compliance with the notice and before enforcement by way of eviction could proceed, e.g. pursuant to section 178.
At paragraphs 235 and 236 of the Inspector's Report he assessed the position in relation to alternative sites as follows (omitting cross-references to the evidence on which he relied):
"235. In relation to the availability of alternative sites, it is clear that the occupants themselves had not investigated any alternatives as a group. The Council accepted that, on current knowledge, there was no site in its area to which they could be directed. New sites will be addressed in the preparation of the Development Plan Documents which will include site allocations. It has to be borne in mind, however, that the appellant did not consult the Council about prospective sites which might have given rise to any alternatives. Although emphasis was given to the togetherness of the occupants, I am doubtful from the evidence that this is so compelling as to preclude alternatives.
236. However, there seems to be no prospect of suitable and available sites coming forward in the short term. Consequently, accommodation arrangements would be uncertain and unsatisfactory for a period if the appeal is dismissed. There would be a risk of some of the occupants returning to unauthorised occupation, although this may not be the case for all as there were family connections in the wider area. This is, however, a matter which could impact on the occupants' ECHR [European Convention on Human Rights] Article 8 rights, and unauthorised roadside camping has implications for the wider public interest."
Although the Inspector regarded the absence of a local plan policy dealing with gypsy and traveller sites as an omission, he considered that overall the failure of policy was in itself a matter of little weight (paras. 237–240). At paras. 241–248 of his Report the Inspector made his assessment of "The overall balance, human rights and race relations." He acknowledged that dismissal of the appeal and upholding the enforcement notice, so that the occupants might have to move from the land, would result in a significant interference with their rights to respect for their private life, family life and home under Article 8 of the ECHR. However, he found that the harm to the Green Belt from the caravan site on the land was considerable and that the grant of planning permission for it could not be justified; accordingly he recommended that the deemed application for such permission should be refused (para. 243). In his assessment, the interference with the Article 8 rights of the occupants would be proportionate.
At para. 244 the Inspector said:
"If the Secretary of State agrees, this will be likely to require the occupants to leave the site. However, the harm which has been caused by the development to matters of local and national importance, including the protection of the environment and the protection of the rights and freedoms of others, is considerable. The protection of the public interest cannot be achieved by means which are less interfering of the occupants' rights. I have also taken into account the finding in Chapman v UK [ (2001) 33 EHRR 18] that, when considering whether action to require a person to leave a home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. In this case, the consequences arising from the Council's enforcement action are, to a significant extent, of the occupants' own making. Circular 01/2006 emphasises that gypsy and traveller communities should have the same rights and responsibilities as every other citizen, and that the obligation on public authorities to act compatibly with Convention rights does not give gypsies and travellers a right to establish sites in contravention of planning control."
At paras. 249–254 of his Report, the Inspector considered the appellant's alternative submission that temporary planning permission should be granted. The argument for the appellant was that there was unmet need for gypsy and traveller site provision in the Council's area, but a reasonable expectation that new sites were likely to become available to meet that need after a period, so temporary planning permission should be granted so as to avoid the adverse effects of the absence of suitable alternative accommodation in that intervening period; the appellant argued that temporary permission for four years would be appropriate to achieve this: paras. 249–251.
However, the Inspector dismissed the application for the grant of temporary planning permission because the harm from the development was so severe. In the Inspector's view, "the unmet need and the absence of alternative sites should be left to the balance to be struck in ground (g) of the appeal": para. 253. Nonetheless, against the possibility that the Secretary of State might balance these matters differently and decide to grant temporary planning permission on the basis of the appellant's argument, the Inspector gave his opinion that temporary planning permission should be given only for three years, "which should tie in with progress on site allocations within the local development framework up to 2014": para. 254.
At paras. 256–259 of his Report, the Inspector considered ground (g)...
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Table of Cases
...[2002] 4 All ER 58, [2002] JPL 821, HL 8 xlviii Planning Law: A Practitioner’s Handbook R (Eastwood) v Windsor and Maidenhead RLBC [2016] EWCA Civ 437, [2016] HLR 22, [2016] JPL 997 308 R (Edwards) v Environment Agency (No 2) [2006] EWCA Civ 877, [2007] Env LR 9, [2007] JPL 82, (2006) 103(3......
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Enforcement of Planning Control
...situations. A decision to exercise this power would be subject to judicial review. See R (Eastwood) v Windsor and Maidenhead RLBC [2016] EWCA Civ 437, where the Court of Appeal rejected a challenge to the decision of the LPA to exercise its powers under s 178 to enter and clear land which w......
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Enforcement of Planning Control
...situations. A decision to exercise this power would be subject to judicial review. See R (Eastwood) v Windsor and Maidenhead RLBC [2016] EWCA Civ 437, where the Court of Appeal rejected a challenge to the decision of the local planning authority to exercise its powers under s 178 to enter a......