Mary Flynn (Applicant/Claimant) v Basildon Borough Council (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE KENNETH PARKER |
| Judgment Date | 31 August 2011 |
| Neutral Citation | [2011] EWHC 2569 (QB) |
| Date | 31 August 2011 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ11X03085 |
[2011] EWHC 2569 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Kenneth Parker
Case No: HQ11X03085
MR M CUTTEN (instructed by Davies Gore Lemax LLP Solicitors) appeared on behalf of the Claimant
MR R TAYLOR (instructed by Basildon Borough Council) appeared on behalf of the Defendant
Approved Judgment
This is an application brought by Mary Flynn against Basildon Borough Council, the defendant. The claimant seeks interim relief which I may summarise as follows: prohibiting the defendants from carrying out scheduled site clearance and eviction of the claimants which is planned to take place at land known as Dale Farm, Basildon any time after 1 September 2011.
The background to this application is well known and, in one sense, notorious, without using that term in any way pejoratively. The background is that Dale Farm is a very substantial travellers' site; indeed, it is one of the largest travellers' sites in Europe. The defendant has been seeking for a number of years to take steps to enforce planning control in respect of the site, steps that would inevitably lead to the removal of those travellers who are there and who have been there for some substantial time.
The application is made to support a claim that is set out, in short, in particulars of claim. The particulars say that the claimant is an Irish traveller living on the land at Dale Farm. The said land, it is said, comprises two estates know as the Horseshoe and Middle plots, on which there are a total of 51 separate pitches. The claimant's pitch is known as 31 Beauty Drive, Dale Farm, Oak Lane, and is owned by the claimant.
The claimant has been there since about 2003. She is now 71 years old and there are two caravans presently located on the pitch. The particulars of claim also particularise other occupants of the pitch.
Paragraph 9 of the claim says that, on or about 4 July 2011, the defendants served the claimant with a 28-day notice relating to the defendant's decision to pursue enforcement action under section 178 of the Town and Country Planning Act 1990.
It is alleged that where the claimant lives comprises her home for the purposes of Article 8 of the European Convention on Human Rights. She then sets out her present medical condition and the effect that removal would have on her, in particular, having regard to her present state of health.
At paragraph 1 of the claim she says that, in all the circumstances, her eviction amounts to a serious interference with her right to respect for her home, her family and private life and that, in principle, she should be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles of Article 8 of the Convention.
The claim applies for an order that the defendants be forbidden from entering upon the land known as 31 Beauty Drive, Dale Farm, for the purposes of carrying out any direct action, pursuant to section 178 of the Town and Country Planning Act 1990.
It is important in the context of this application to set out in some detail the history of the legal proceedings that have led us to this point. The land lies within the metropolitan Green Belt where strict planning policies apply. The claimant has no planning permission to reside there and her occupation is indisputably in breach of planning control.
In September 2003, the defendant issued enforcement notices against the change of use of the land for the deposit of hard core and road scalpings and for operational development for the formation of a hard standing over the plot. The enforcement notices required the following steps to be taken by 24 November 2003, namely: remove all hard core and road scalpings from the land.
The notice was not the subject of an appeal, which is provided by section 174 of the Town and Country Planning Act 1990. That is not without importance because Parliament has provided a specific means by which those who are affected by such notices may appeal to an inspector in the first instance, subject to review by the Secretary of State, subject in turn to judicial review by this court. The claimant did not exercise those rights. It may be the case that the time period for bringing such an appeal is relatively short (six months) but, no doubt, Parliament expected that those who brought such appeals would await the outcome and then would take expeditious steps to comply with any adverse decision. Those who act in that way would not be prejudiced. Of course, if no appeal is brought and there is then a long period before actual enforcement, circumstances may change, but that does not seem to me to be a good point as to any deficiency in the statutory appeal mechanism. The claimant's continued non-compliance is a breach of the Criminal Law; see section 179 of the Town and Country Planning Act 1990.
The claimant did apply for planning permission on 20 June 2004 for the change of use of the land to use for the siting of a gypsy caravan, including the creation of hard standing. Planning permission was refused by the defendant. On that occasion, the claimant did exercise her statutory rights and appealed against the refusal. Every aspect of the refusal was considered by the inspector and was rejected. The matter then went to the Secretary of State who rejected the appeal.
The inspector who held the inquiry into the appeals reported on a number of matters to the Secretary of State. He reported that the site harmed the Green Belt and the proposed development was contrary to planning policy. He also referred to the road traffic implications of the application for planning permission and remarked on the dangerousness to the free and safe flow of traffic. The personal circumstances of the appellants were also considered and, on balance, it was held that the cessation of use was a proportionate response and there was no violation of human rights.
The Secretary of State agreed and dismissed the claimant's appeal. The Secretary of State expressly said as follows:
"The Secretary of State considers that the appeal proposals are harmful to the Green Belt by definition, and also in terms of harm to the openness of an important Green Belt site. They would also have a materially harmful visual impact on the Green Belt and the appearance of the countryside in the locality. The proposals are contrary to development plan policies on the Green Belt. The Secretary of State also considers that there are serious highway objections to the appeal sites. He has carefully considered the demand for sites in the area, the appellants' need for a site, the lack of alternative sites … and the educational and health needs of the appellants and their children. He concludes that these factors do not outweigh the harm caused by these developments."
It is also of importance that the Secretary of State considered during the specific planning process the human rights of the claimant, among others. The Secretary of State said this:
"The Secretary of State has carefully weighed the human rights and needs of the appellants and the potential consequences of dismissal of the appeals against the public interest in protecting the Green Belt. The Secretary of State accepts that the dismissal of these appeals are likely to result in an interference with the rights of the occupants under Article 8(1) of the ECHR. Having regard to their personal circumstances and, in particular, to the educational needs of the children, the Secretary of State has carefully considered whether such interference is justified within the terms of Article 8(2). Overall, the Secretary of State is satisfied that, taking account of the serious planning objections to the development and his conclusion as to the absence of very...
To continue reading
Request your trial