R and Others v Basildon District Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 12 October 2011 |
| Neutral Citation | [2011] EWHC 2938 (Admin) |
| Docket Number | CO/9098/2011 CO/9316/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 October 2011 |
[2011] EWHC 2938 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Ouseley
CO/9098/2011
CO/9115/2011
CO/9316/2011
MR M WILLERS and MISS I SABIC appeared on behalf of Mary Sheridan
MR C JACOBS appeared on behalf of Cornelius Sheridan and others
MR RICHARD HARWOOD and MISS E WILES appeared on behalf of Margaret McCarthy
MR REUBEN TAYLOR (instructed by the Solicitor to the Council) appeared on behalf of the Defendant
I am grateful to all counsel for their submissions. I recognize the strength of feeling on each side. I am grateful to the parties for the way in which they have all conducted themselves, although it is clear that at the end of this hearing one side is going to be disappointed.
Introduction
I am concerned with three separate but very closely related cases which all challenge decisions by Basildon District Council relating to its intended exercise of powers under section 178 of the Town and Country Planning Act 1990 to enter plots of land owned or occupied by the various claimants and others at Dale Farm near Basildon itself, and there to take the steps which effective enforcement notices require the owners to have taken many years ago to remedy breaches of planning control. In particular, the controversial steps are the removal of caravans, the removal of hardstanding and the cessation of the residential use. Two actions have been brought in the name of single individuals and a third in the name of 11 individuals who formed the Dale Farm Housing Association. Each action refers to and relies on the circumstances of other residents in addition to the main claimants, and seeks to apply its argument to all residents, for the benefit both of the claimants in the individual cases and for the others who live on the site. None are solely concerned with circumstances peculiar to the individual claimants alone.
All were dealt with as rolled-up hearings with the permission and substantive hearings being dealt with together. Permission to apply for judicial review has not yet been granted in any of them.
The third action was ordered in to be dealt with late in the day before my hearing began in the other two. There were accordingly three sets of counsel and three separate solicitors to represent the claimants in those three actions. A fourth action had been started in the name of Mary Flynn in July seeking a stay the removal on human rights grounds which Kenneth Parker J refused on 31 August on grounds of res judicata in the light of a Court of Appeal decision in January 2009. Permission to appeal was refused on 19 September but on different grounds by Pill LJ.
There was yet a fifth action, again brought by a single claimant, Mr Patrick Egan, dealt with by Edwards-Stuart J in the Queen's Bench Division. This dealt with an issue over the extent to which action under section 178 could lead to the demolition of all walls, gates and fences and the removal of all caravans and buildings on the site. This was an issue over the area, scope and interpretation of the effective enforcement notices. The effect of the judgments of Edwards-Stuart J, following discussion between the parties in the light of an interim judgment that he gave, was that a residential building on plot 28 cannot be removed under these proceedings, which was never an issue; the stationing and residential use of caravans on plots 45, 50 and 51 cannot be affected in this action, save to the extent necessary to remove the hardstanding on which they are placed; the brick building on plot 33 cannot be struck at by these proceedings; a building on plot 18 is subject to an enforcement notice but cannot be dealt with by this action. The hardstanding on plots 21, 22, 23 and 52 to 54 at Beauty Drive is not struck at by the effective enforcement notices. The gates, walls and fences cannot be removed except for the temporary purpose of carrying out the steps required under section 178, following which they have to be replaced. That is because they are permitted development.
There is no reason why that fifth action should not have been started much earlier and it ought to have been brought in the Administrative Court where it would have been subject to the relevant time limits.
Section 178 of the Town and Country Planning Act provides as follows:
"(1) Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may -
(a) enter the land and take the steps; and
(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."
There are some 54 plots on Dale Farm, the number varying slightly depending on which document is referred to. The Dale Farm site adjoins an authorised site at Oak Lane. It is often referred to as being in two parts, the horseshoe part which surrounds on three sides a middle part. The plots are referred to by different numbers in various documents or by addresses. I shall use the plot numbers in the plan at page 340 in the claimant's bundle in claim CO/9098/2011.
The history
Travellers purchased and started moving caravans on to these former plotlands at the end of 2001 or at the start of 2002, and imported substantial amounts of hardcore to provide for hardstanding and access from the road. They did not seek planning permission before doing so. I set out in some detail the sequence of decisions and appeals because it is important for it to be understood how carefully the circumstances of this case and the merits of the residential use at Dale Farm have been considered in the past and how consistently the arguments for the claimants and the travellers on this site have been rejected.
Basildon District Council served eight enforcement notices in 2002 requiring the removal of the caravans, the hardstanding, the demolition of certain buildings, the levelling of the site and reseeding it with grass. It refused planning permission for 22 residential caravans to be stationed on an area which included a former scrapyard. These enforcement notices and applications covered or related to the area known as the horseshoe, an area on what are now some 40 plots. The decisions were appealed. Two enforcement notices were held to be nullities. All other appeals were dismissed by the Secretary of State as the inspector recommended after a public inquiry. The inspector's report records the cases made by the appellants on the grounds of personal circumstances, including their health needs, the educational needs of their children and the problems which they would face if they were removed because of the lack of alternative sites.
The inspector concluded that there would be harm to the Green Belt, not just because of inappropriate development but because the site was within a fairly narrow wedge of Green Belt separating Basildon from Wickford and Billericay. The inspector commented in paragraph 229 of the decision letter of 13 May 2003 that:
"Looking first at the harm to the Green Belt, paragraph 3.2 of PPG2 advises that inappropriate development is, by definition, harmful to the Green Belt. In this case, however, the harm is more than that caused only by inappropriateness.
The appeal site is within a fairly narrow wedge of Green Belt that separates Basildon from the two smaller towns of Wickford and Billericay and I agree with the Council that it helps to check the sprawl of these large built-up areas, safeguards the surrounding countryside from further encroachment, and contributes towards preventing other towns from merging into one another."
The Inspector commented that the very large travellers site had a disproportionate effect on the Green Belt and visual appearance of the area:
"232. The adverse impact upon the Green Belt can be seen at its greatest when all the appeals are considered together. Nevertheless, the development on each of the appeal sites has a significant adverse effect on the openness of the Green Belt…"
The inspector then dealt with need in paragraphs 238 to 239. He recorded the acceptance by the Council that there might be an unmet need but it had argued that the Local Plan Review was the appropriate means of considering this. The appellants are recorded as not dissenting from that. The inspector went on to say that the evidence also seemed clear that there were insufficient vacancies on Council-owned sites in Essex to accommodate them:
"Thus, it seems likely that dismissal of the appeals, without any extension of the periods for compliance, would be likely to result in some or all of the families having to resort to unauthorised camping on an itinerant basis, leaving them open to legal action. This undesirable eventuality is therefore something to be weighed in the balance."
Personal circumstances were considered in paragraph 242 in these terms:
"First, there are some adults living on the site who might find it particularly difficult to return to a life on the road and who would therefore benefit from a permanent site. These include single parents, especially single mothers. They also include those with particular health needs that require regular hospital visits or trips to the Doctor [see as examples 96,97,100 and 101]. This is, in my view, an important consideration.
Second, a substantial number of children live on the site and, with a settled base, they would...
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