R (McCarthy & others) v Basildon District Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Pill |
| Judgment Date | 22 January 2009 |
| Neutral Citation | [2009] EWCA Civ 13 |
| Docket Number | Case Nos: C1/2008/1204, C1/2008/1205, |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2009 |
[2009] EWCA Civ 13
Before: Lord Justice Pill
Lord Justice Lloyd and
Lord Justice Moses
Case Nos: C1/2008/1204, C1/2008/1205,
C1/2008/1188, C1/2008/1202
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Mr D Elvin QC and Mr P Epstein QC and Mr R Taylor (instructed by Basildon District Council) for the Appellants
Mr J Luba QC and Mr A Offer (instructed by Messrs Davies Gore Lomax) for the Respondents in McCarthy & Ors and Culligan & Ors
Mr J Luba QC and Mr D Watkinson (instructed by Messrs Bramwell Browne Odedra for the Respondents in Taylor & Ors)
Mr J Luba QC and Mr D Watkinson (instructed by Southwest Law Limited for the Respondents in Coyle & Ors)
Robin Allen QC by written submissions, instructed by the Equality and Human Rights Commission as Interveners
Hearing dates: 4 and 5 December 2008
Lord Justice Pill:
This is an appeal against a judgment of Collins J given on 9 May 2008 whereby he quashed a decision of Basildon District Council (“the council”) to take direct action pursuant to section 178 of the Town & Country Planning Act 1990 (“the 1990 Act”) to force compliance with enforcement notices in respect of land in Billericay, Essex occupied by the claimants and their families, and made on earlier dates and 13 December 2007. The judge described the proceedings before him:
“There are before me four claims by over 40 families of mainly Irish Travellers or Gypsies who are resident on unauthorised sites in the Council's district. The land which they occupy is in the Green Belt and planning permission has been refused. Enforcement notices have been served and upheld on appeal. The Council now seeks to remove their caravans from the land they occupy and to enforce compliance with the notices by removing the hard standing which has been placed on the land so that it is restored to its natural state.”
The judge gave further particulars of the occupation at paragraphs 2 to 5 of his judgment. To summarise, there are 2 sites at Dale Farm, Oak Lane, Billericay known as the Horseshoe and Middle Plots. On one of them are at least 39 pitches and on the other 12 pitches. There are 7 pitches at Five Acres Farm, Hove Fields Drive, Wickford and 5 on land close by and north of Hove Fields Drive. All the sites are in the Green Belt and in Basildon District. It was common ground at the hearing that the relevant decision of the council was by its Development Control and Traffic Management Committee (“the committee”) on 13 December 2007, when earlier decisions were reconsidered.
I would pay tribute to the care with which the judge has described the history of the dispute and the more general issues which have arisen over many years because of the limited accommodation on which Gypsies and Travellers may lawfully park their caravans and vehicles. Different approaches to the problem have been attempted over the years. The duty on local authorities to provide sites was abolished in 1994. The present duty is to make provision for sites in development plans and to perform duties under the Housing Act 1996 (“the 1996 Act”). The current guidance from the government is in Office of the Deputy Prime Minister (“ODPM”) Circular 01/2006 entitled “Planning for Gypsy and Traveller Caravan Sites”.
The sites on which the caravans are parked are owned by the claimants. The occupation, without planning permission, has been for different periods, the earliest being from late 2001. Enforcement action has been taken by the council under section 172(1) of the 1990 Act and the claimants have sought to defeat it by applying for planning permission. In each case the Secretary of State for Communities and Local Government (“the Secretary of State”) has upheld the enforcement notice and refused permission, including temporary permissions, the most recent of the decisions being in January 2008. Extensions of time have been granted but have been used, the council submits, to consolidate the present use of the site. Temporary permissions have been granted on other sites in the Basildon District. The claimants have also applied for the present judicial review, the first claim being issued in July 2005, the second in February 2006 and the remainder in 2007.
Section 178(1) of the 1990 Act provides:
“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;
(b) Recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.”
Section 178 also empowers the making of regulations to permit provisions in the Public Health Act 1936 to apply to any steps required to be taken by an enforcement notice. Section 178(6) provides that any person who wilfully obstructs a person acting in the exercise of powers under sub-section (1) “shall be guilty of an offence …”
There are 116 authorised pitches for travellers within the council's district. One of the authorised sites adjoins the Horseshoe at Dale Farm. When it took its decision to act under section 178, no lawful alternative sites were available in the Basildon District to which the claimants could lawfully decamp. It is noted in paragraph 3.15 of the council's Core Strategy Issues Paper (“CSIP”) that “despite its being a relatively small area geographically, [the District] has the sixth highest number of caravans on authorised sites of any District/Borough in the country.”
For the claimants, Mr Luba QC accepts that the claimants have reached the end of the road in their attempts to regularise their position by obtaining planning permission or temporary planning permission. That has been considered on a plot by plot basis. The extreme difficulty involved in obtaining planning permission for caravan and trailer sites in the Green Belt is acknowledged. Mr Luba accepts that the claimants are on the land unlawfully and that, even if the appeal is dismissed, they will still be on land unlawfully. He accepts that the most recent planning decisions of the Secretary of State reflect the planning situation. He accepts that the council could lawfully evict each and every one of the claimants provided they lawfully and appropriately direct themselves. His submission is that the judge was correct to hold that the decision of 13 December 2007 should be quashed because all relevant matters had not been properly taken into account by the council.
The judge's conclusions were:
“65. There can be no doubt that the claimants cannot remain where they are and that the time must come when they will have to leave, whether voluntarily or by means of forcible eviction. Despite the difficulties they face and the absence at present of sufficient sites to meet their needs, Travellers and Gypsies must appreciate that the law will not tolerate developments without planning permission being obtained, particularly on Green Belt land, and will be likely to uphold enforcement action where the individual circumstances of those affected have been properly considered against the harm to the environment and to relations with the community. Nevertheless, it is necessary for all relevant matters to be properly taken into account and it is impossible not to have some sympathy with the problems created for Gypsies and Travellers by the lack of sufficient sites to cater for their proper needs.
66. I have no doubt that a decision to enforce under s.178 is likely to be unassailable in respect of most and perhaps all of the claimants in due course. But there are concerns which I have already spelt out. It seems to me that the approach to need has been too restrictive and that, following in particular the EERA report (albeit not accepted by the Council), further consideration should be given to whether any sites can be found in the district and whether any families can be allowed to remain for the time being. In addition, I do not think the possible effects of the homelessness duty have been sufficiently dealt with in the advice given to the Committee. Finally, I think that the approach has been that the sites should be cleared rather than a consideration of whether there are any individual families whose circumstances are such, whether because of serious ill-health or the needs of their children, that in their individual cases eviction would be disproportionate. I am not to be taken as saying that there necessarily are any such, but I think that possibility should have been drawn to the Committee's attention.
67. I am conscious that this decision may mean no more than that a little more time is given to the claimants and the Council may feel that yet further delay is to be deprecated. Nonetheless, the decision, whichever way it goes, must be based on consideration of all that is relevant. But in the circumstances for the reasons I have given I am persuaded that the decisions of 13 December 2007 cannot stand.”
The concerns already spelt out were those stated at paragraph 36:
“… it is necessary for the Council at least to consider whether any other sites can be found. I appreciate that this may not provide for all those affected by the decision to enforce, but, if there is a question of priorities, the individual circumstances of the various families will have to be taken into account.”
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