R (Wilson) v Wychavon District Council and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Moses,Sir Anthony Clarke MR |
| Judgment Date | 06 February 2007 |
| Neutral Citation | [2007] EWCA Civ 52 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2006/0054 |
| Date | 06 February 2007 |
[2007] EWCA Civ 52
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Crane
Case No: CO/2845/2004
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice Moses and
Lord Justice Richards
Case No: C1/2006/0054
Charles George QC and Marc Willers (instructed by The Community Law Partnership) for the Appellant
Philip Sales QC and Nathalie Lieven QC (instructed by The Treasury Solicitor) for the Second Respondent
The First Respondent did not appear and was not represented
Where a local planning authority has issued an enforcement notice to restrain breach of planning control, it may also issue a “stop notice” under section 183 of the Town and Country Planning Act 1990 (“the 1990 Act”), prohibiting the carrying out of a specified activity on the land to which the enforcement notice relates. But section 183(4), as amended, provides that a stop notice shall not prohibit the use of any building as a dwellinghouse. The legislation formerly contained an additional exception, that a stop notice was not to prohibit the use of land as the site for a caravan occupied by any person as his only or main residence. The issue in this appeal is whether the legislation in its present form, by providing an exception for dwellinghouses but not for residential caravans, discriminates against Romany gypsies and Irish travellers in breach of article 14 of the European Convention on Human Rights. The appellant, herself a Romany gypsy, seeks a declaration of incompatibility under section 4 of the Human Rights Act 1998.
The factual background to the case is a not unfamiliar one. On Friday 28 May 2004 the appellant and other members of her extended family moved onto land in Worcestershire which had been acquired by members of the family some months previously. Over the weekend, without planning permission, the site underwent what the council described as “extensive, carefully orchestrated and well-resourced development”. The site was divided into plots; each plot was fenced; a mature hedgerow along the roadside boundary was ripped up and a high, close-boarded fence was erected around the site; a new access onto the road was created; service areas, access ways and hardstanding were formed over most of the site; and a number of caravans and vehicles were stationed there. It appears that provision had already been made for electricity, water and drainage services.
On the afternoon of 28 May, shortly before development began at the site, an application for planning permission was lodged, but it was subsequently returned by the council because the applicants were not identified and the application could not therefore be registered. Later, in July 2004, a retrospective application for planning permission was lodged, but the application was refused by the council in August 2004.
On 1 June 2004 the council decided to take enforcement action. It issued two enforcement notices, one aimed at the construction of driveways, service areas and hardstanding, the other at residential use of the land and the installation of the various services, each expressed to take effect on 9 July. The lodging of appeals against the enforcement notices, however, meant that they could not take effect until the appeals were determined. In the event the appeals were dismissed in November 2004, save that the period for compliance with the notices was extended to 8 April 2005.
In conjunction with the issue of enforcement notices, the council issued two stop notices, one requiring construction operations to cease and the other requiring the occupiers to cease the use of the land for the stationing of caravans for human habitation. The stop notices took effect on 2 June. Construction work had already ceased by that time, but the appellant and others continued to station their residential caravans on the land in breach of the relevant stop notice, thereby exposing themselves to criminal liability.
The appellant applied for permission to bring a claim for judicial review, arguing that (a) the stop notice relating to the stationing of residential caravans on the land was unlawful and in breach of her rights under article 8 of the Convention, and (b) that the legislation itself was incompatible with article 14. In November 2004 the claim in respect of the stop notice was dismissed by consent but Sullivan J granted permission for the challenge to the legislation to proceed. That challenge was heard in December 2005 by Crane J, who dismissed it in a judgment reported at [2006] JPL 1530. The present appeal is brought against that judgment.
By the time of the hearing before Crane J, the appellant and the other occupiers had in fact left the site. An injunction requiring them to remove their caravans from the land had originally been granted by Morland J on 30 June 2004, but its operation had been stayed pending an appeal against the enforcement notices. On 5 January 2005 Tugendhat J granted a further injunction, ordering the appellant and other occupiers to remove all caravans stationed on the land and to cease human habitation of the land by 8 April 2005, the new date for compliance with the enforcement notices. In the event they left the site in mid-April 2005. At the hearing before us we were told that the appellant was still on the road.
Despite that change in factual circumstances since the claim was brought, the issue raised by this appeal remains of potential relevance to the appellant personally as well as having a wider importance.
The place of stop notices within the enforcement regime
The facts outlined above reveal much of the armoury available to a local planning authority for the enforcement of planning control. The principal weapon is an enforcement notice. Under section 172 of the 1990 Act, an authority has the power to issue such a notice where it appears to the authority that there has been a breach of planning control and it is expedient to issue the notice, having regard to the provisions of the development plan and to any other considerations.
Where an authority considers it necessary or expedient for an actual or apprehended breach of planning control to be restrained by injunction, it can apply to the court for such an injunction under section 187B of the 1990 Act. The approach to be taken by the court where the application is made against gypsies whose rights under article 8 may be engaged was laid down in South Buckinghamshire District Council v Porter [2003] 2 AC 558.
The other two main powers are for the issue of stop notices and temporary stop notices, both of which require more detailed treatment.
Stop notices
Stop notices were introduced by section 19 of the Town and Country Planning Act 1968 and were carried over into section 90 of the Town and Country Planning Act 1971. They applied originally only to the prohibition of “operations” alleged in an enforcement notice to constitute a breach of planning control or so closely associated therewith as to constitute substantially the same operations. By section 1 of the Town and Country Planning (Amendment) Act 1977, amending section 90 of the 1971 Act, their scope was enlarged to the prohibition of any “activity” which was, or was included in, a matter alleged by an enforcement notice to constitute a breach of planning control. This meant that they could be deployed in relation to a change of use of land even where there were no operations on the land.
However, section 90(2) of the 1971 Act, as so amended, contained an exception in the following terms:
“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) ….”
It is a convenient shorthand to refer to the exemption in (b) as an exemption for residential caravans.
The stop notice procedure was one of the matters considered by Robert Carnwath QC in a major report published in February 1989 on “Enforcing Planning Control”. In section 9 of chapter 7 he observed that the failure to use the procedure effectively was one of the main reasons for criticism of the present system, since it offered an authority the best means of urgent action where that was justified. He stated that a number of amendments could usefully be made. One of them related to the exception for residential caravans:
“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.”
Before effect could be given to that recommendation, the exemption for residential caravans was in fact...
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