Wilson, R (on the application of) v Wychavon District Council & Anor

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 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 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 carried over into the next consolidating legislation, the 1990 Act. The exemption was, however, soon removed by section 9 of the Planning and Compensation Act 1991, which amended section 183 of the 1990 Act so that its material provisions now read as follows:

“(1)

Where the local planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a ‘stop notice’) prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.

(2)

In this section and sections 184 and 186 ‘relevant activity’ means any activity specified in the enforcement notice as an activity which the local planning authority require to cease and any activity carried out as part of that activity or associated with that activity.

(3)

A stop notice may not be served where the enforcement notice has taken effect.

(4)

A stop notice shall not prohibit the use of any building as a dwellinghouse.”

The focus of this case is on the fact that section 183(4) now confers an exemption in respect of dwellinghouses but not in respect of residential caravans.

It will be seen that a stop notice has to relate to a particular enforcement notice and can be served either with the enforcement notice or at any time up to the expiry of the period for compliance with the enforcement notice. In the former legislation there was a minimum period of 3 days before the stop notice could take effect, but a further recommendation made in the Carnwath report was that a notice should be allowed to take effect immediately where there were special reasons justifying it; and that recommendation was also implemented in the 1991 Act (substituting a new section 184(3) in the 1990 Act).

There is no statutory right of appeal against a stop notice. Any challenge must therefore be brought by way of a claim for judicial review and will not suspend the operation of the stop notice unless and until the court orders a stay.

Contravention of a stop notice is a criminal offence for which a person is liable to a fine either on summary conviction or on conviction on indictment.

Temporary stop notices are a recent introduction. They are governed by sections 171E to 171H of the 1990 Act, as inserted by section 52 of the Planning and Compulsory Purchase Act 2004. The power to issue a temporary stop notice is not dependent on the issue of an enforcement notice. An authority may issue a temporary stop notice where it thinks that there has been a breach of planning control in relation to any land and that it is expedient that the activity which amounts to the breach is stopped immediately. The notice must specify the activity in question, prohibit the carrying out of that activity and set out the authority’s reasons for issuing the notice. There are provisions for service of the notice and for display of a copy of it on the land. The notice has effect from the time the copy is displayed and ceases to have effect after a maximum period of 28 days.

An important restriction on temporary stop notices is contained in section 171F(1):

“A temporary stop notice does not prohibit –

(a)

the use of a building as a dwellinghouse;

(b)

the carrying out of an activity of such description or in such circumstances as is prescribed.”

Regulation 2 of the Town and Country (Temporary Stop Notice) (England) Regulations 2005 prescribes circumstances in which a temporary stop notice does not prohibit the stationing of a caravan on land:

“(1)

The stationing of a caravan on any land in the circumstances specified in paragraph (2) is prescribed for the purposes of section 171F(1)(b) of the Town and Country Planning Act 1990.

(2)

The circumstances are that –

(a)

the caravan is stationed on the land immediately before the issue of the temporary stop notice; and

(b)

the caravan is at that time occupied by a person as his main residence;

unless the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect.”

I shall come back to the circumstances that led to the adoption of an exemption in those terms, and to the significance of the exemption, when considering the issue of justification for the absence of an exemption for residential caravans in the ordinary stop notice regime.

In practice the temporary stop notice has proved a valuable additional weapon for local planning authorities. Over 300 temporary stop notices were issued in 2005/06, in relation to a wide variety of unauthorised development, including unauthorised gypsy sites.

The issue for decision, as I have indicated, is whether section 183(4) of the 1990 Act as amended is incompatible with article 14 of the Convention in providing for an exception for dwellinghouses but not for residential caravans.

Article 14 reads:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Secretary of State has very properly made a number of concessions which serve greatly to reduce the area of contention. It is not in dispute that (a) the operation of section 183 falls within the ambit of article 8, so as to engage article 14; (b) a higher proportion of gypsies and travellers than of any other relevant group would be likely to be affected by stop notices served under section 183 on caravans used for residential purposes; (c) therefore, although the exemption in section 183(4) appears on its face to be a neutral provision, its greater impact on gypsies and travellers than on the general population means that it is indirectly discriminatory in its effect in relation to a status falling within the scope of article 14; and (d) hence there is an onus on the State to give an objective justification for the rule as formulated. The point for decision is whether the Secretary of State has discharged the onus of justifying the provision.

The Secretary of State’s position on justification, as set out in Mr Sales’s submissions, is in summary as follows:

The various points taken in response by Mr George, on behalf of the appellant, can be summarised in this way:

A discrete issue raised by the first of Mr George’s submissions is whether it is permissible to refer to Hansard for the purpose of an argument based on the absence of any express consideration by the legislature of the amendment removing caravans from the former exemption. Crane J dealt with this at paras 18-27 of his judgment. He pointed out that the Strasbourg court has on occasion considered debates of the UK Parliament and he referred specifically to Hirst v United Kingdom (No 2) (2006) 42 EHRR 42. He concluded, however, that Wilson v First County Trust Ltd (No 2) (cited above) was binding authority that it was not open to him to examine the parliamentary debates for the purpose sought.

Permission to appeal against that aspect of the judge’s decision was refused on the papers by Keene LJ. Although we granted permission in order that the appellant could keep the point open should this case go further, I am satisfied that the judge was right not to accede to Mr George’s submissions on this issue. The way in which Mr George seeks to deploy the Hansard material is contrary to the approach laid down by the House of Lords in Wilson v First County Trust Ltd (No 2). Although the observations of their Lordships on this issue were not strictly necessary for their decision, which was based on a finding that the Human Rights Act 1998 did not apply retrospectively to the transaction in question, they formed part of a fully considered analysis of the position if the Human Rights Act did apply (see e.g. per Lord Nicholls of Birkenhead at para 27). They are of the highest persuasive authority and should in my view be followed by this court.

In an extensive passage at paras 51-67, Lord Nicholls examined the use of Hansard in cases involving challenges to the compatibility of legislation. He referred first to the approach adopted by the Court of Appeal, which had looked at the parliamentary debates to discover the reason which led Parliament to enact the provision in question, but had found that the material provided no answer to the question and that such references as there were to the point tended to confuse rather than to illuminate. It was submitted on behalf of the Speaker of the House of Commons and the Clerk of the Parliaments that the exercise undertaken by the Court of Appeal was not an appropriate one. Lord Nicholls described those submissions as raising a point of constitutional importance and went on to examine the respective roles of Parliament and the courts, and the established instances where it was permissible for the courts to use statements made in Parliament. He then turned to consider whether a challenge to the compatibility of legislation with Convention rights might be a further instance.

In that connection Lord Nicholls examined what is involved in evaluating the effect of primary legislation in terms of Convention rights. He pointed out that the legislation must not only have a legitimate policy objective but must also satisfy the proportionality test, which involves a “value judgment” by the court. For that purpose the court may sometimes need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. It may also need enlightenment on the nature and extent of the social problem at which the legislation is aimed. Such additional background material may be found in published documents, such as a government white paper; and if relevant information is provided by a minister or any other member of either House in the course of a debate on a Bill, the courts must also be able to take this into account. The courts, similarly, must be able to have regard to information contained in explanatory notes prepared by the relevant government department and published with a Bill. To that limited extent there may be occasion for the courts, when conducting the compatibility exercise, to have regard to matters stated in Parliament. Lord Nicholls said that it was to be expected that occasions when resort to Hansard was necessary as part of the compatibility exercise would seldom arise; and when they did, the courts had to be careful not to treat the ministerial or other statement as indicative of the objective intention of Parliament or to give a ministerial statement determinative weight.

Lord Nicholls continued, in a passage directly pertinent to the present issue:

“67.

Beyond this use of Hansard as a source of background information, the content of parliamentary debates has no direct relevance to the issues the court is called upon to decide in compatibility cases and, hence, these debates are not a proper matter for investigation or consideration by the courts. In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which ‘counts against’ the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister’s exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill or Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute ….”

Lord Scott of Foscote agreed with Lord Nicholls on this issue (para 173). Lord Hope of Craighead adopted a similar approach at paras 110-118. In essence, he held that the court may have resort to Hansard for the purpose of obtaining and using information that casts light on what Parliament’s aim was when it passed the provision in question; but that if the material does not cast such light, this cannot and must not be a ground for criticism. So, too, Lord Hobhouse of Woodborough held at para 143 that the Court of Appeal had adopted “an unacceptable approach” in scrutinising what had been said in Parliament as reported in Hansard to see whether it disclosed any justification they were prepared to accept for the relevant statutory provisions at the time they were enacted.

In my judgment, Mr George seeks to persuade the court to adopt an approach expressly disapproved by the House of Lords when he submits that reference should be made to Hansard for the purpose of showing that the removal of the exemption for residential caravans was not the subject of express consideration in the parliamentary debates and that therefore, in deciding the proportionality of the legislative provision, the court should not allow Parliament the same discretionary area of judgment as if the matter had been expressly debated. The fact that he does not seek actually to criticise what was said in Parliament, whereas in Wilson v First County Trust Ltd (No 2) a degree of criticism was inherent in the Court of Appeal’s finding that specific ministerial statements tended to confuse rather than to illuminate, does not provide a sufficient ground of distinction.

In support of his submissions Mr George relied on Westminster City Council v Morris [2005] EWCA Civ 1184, [2006] 1 WLR 505, a case in which the Court of Appeal held that the discriminatory effect of a particular statutory provision was not justified. In summarising the court’s reasons, Auld LJ stated (at para 82(v)):

“it is not apparent that the Executive in proposing, or Parliament in enacting, [the provision] gave consideration to its potential discriminatory impact in any of the respects proscribed by Article 14 or to the justification, if any, for it; but even if they did, the enactment of such a provision, with such effect, could not have fallen within even the very wide ambit of discretion allowed to the Government and Parliament in such matters.”

Whilst it is clear that the relevant passage from Lord Nicholls’s judgment in Wilson v First County Trust Ltd (No 2) was cited to the court (see per Sedley LJ at para 39), it does not appear that the court heard argument along the lines addressed to us or that the court’s decision depended in any way on the lack of express consideration of the issue by the legislature. In those circumstances I would not place great weight on Auld LJ’s reference to the apparent lack of consideration of the issue, and I do not think that the case gives any real support to Mr George’s submissions concerning the use of Hansard.

It is true that, as Crane J noted, the approach laid down by the House of Lords in Wilson v First County Trust Ltd (No 2) differs from that of the Strasbourg court when determining whether a State has exceeded the margin of appreciation allowed to it under the Convention. In Hirst v United Kingdom (cited above), in considering the weight to be attached to the position adopted by the legislature, the Court took expressly into account that “there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote” and that “it cannot be said that there was any substantive debate by members of the legislature on the continued justification in light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote” (para 79). But the fact that such an approach is adopted by the Strasbourg court, operating within the framework of an international treaty and considering the position of the State as a whole, does not mean that the national court, operating within the framework of domestic law and domestic constitutional principles, can or should adopt the same approach. The differences of legal context are such that there is in my judgment no true inconsistency of approach between Hirst and Wilson v First County Trust Ltd (No 2). Even if there were an inconsistency, however, the appropriate course would in my view be for this court to follow the approach laid down by the House of Lords. For reasons of legal certainty, Kay v London Borough of Lambeth [2006] UKHL 10, [2006] 2 WLR 570 requires such a course where the relevant domestic judgment constitutes a binding precedent (see per Lord Bingham of Cornhill at para 43), and it seems to me that the same reasoning should lead to the same course being followed in the present case even if Wilson v First County Trust Ltd (No 2) does not strictly constitute a binding precedent.

Whilst there was an issue about the use of Hansard for the purpose indicated, no objection was taken to the separate use of certain Parliamentary materials to which I refer later in this judgment, nor to the use of materials such as the Carnwath report, government circulars and the like, to which the court can clearly have regard in accordance with the principles laid down in Wilson v First County Trust Ltd (No 2) when considering the issue of justification, to which I now turn.

The discriminatory impact of section 183, in subjecting residential caravans to the stop notice regime whilst exempting dwellinghouses from that regime, can be justified only if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised: see Ghaidan v Godin-Mendoza [2004] 2 AC 557, para 18, echoing the language repeatedly used by the Strasbourg court, as e.g. in Petrovic v Austria (2001) 33 EHRR 14, para 30, and Stec v United Kingdom, judgment of 12 April 2006, para 51.

Those matters fall to be assessed by reference to the position when the issue arises for determination, not when the legislation was enacted: Wilson v First County Trust Ltd (No 2), para 62, and Ghaidan (House of Lords), para 23. See also R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, which illustrates the possibility that legislation may be justified when introduced but may cease to be so by the time when the differential treatment is applied to the particular applicant.

The aim in this case is the protection of the environment. More specifically, it is clear that the purpose of applying the stop notice regime to residential caravans is to protect the public against serious harm to amenity. The view expressed in the Carnwath report (para 14 above) was that the former exemption for residential caravans was “an unnecessary restriction on the use of the power to prevent serious injury to amenity in appropriate cases”. PPG18, “Enforcing Planning Control”, issued in December 1991, makes clear that the new and improved enforcement powers introduced by the Planning and Compensation Act 1991, including the power to serve a stop notice in respect of a residential caravan, were based on the main recommendations of the Carnwath report. PPG18 also underlines that the purpose of the enforcement provisions is the protection against serious harm to public amenity (see, in particular, paras 3 and 13).

As is accepted by the appellant, that is undoubtedly a legitimate aim, and it is an aim on which reliance can properly be placed even in the context of the special consideration to be given to gypsies and travellers. That is shown by the passages in Chapman v United Kingdom and Connors v United Kingdom cited by Mr Sales and referred to at para 28(a)-(b) above. The importance attached by the Strasbourg court to the protection of the environment against unlawful use of land is illustrated by para 102 of the judgment in Chapman, where the court was considering the compatibility with article 8 of enforcement action taken against the stationing of a residential caravan by a gypsy on her own land in breach of planning control:

“Where a dwelling has been established without the planning permission which is needed under national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her own home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.”

When reviewing legislative provisions pursuant to its obligations under the Human Rights Act 1998, the court accords Parliament a discretionary area of judgment, which is the domestic counterpart of the margin of appreciation accorded, at the international level, by the Strasbourg court to the State. The extent or scope of that discretionary area of judgment depends on the circumstances, the subject-matter and the background (cf, in relation to the margin of appreciation, Petrovic, para 38, and Stec, para 52). Here, there are factors telling in different directions.

On the one hand, a wide margin of appreciation or discretionary area of judgment is usually allowed in relation to matters of social or economic policy. That encompasses matters of planning policy, as is shown e.g. by Chapman, para 92, and Connors, para 82.

On the other hand, the margin or discretionary area is generally much smaller in relation to discrimination on particularly sensitive grounds such as gender or race. For example, it has been repeatedly stated by the Strasbourg court that, as a general rule, “very weighty reasons” are needed for a difference of treatment on grounds of sex to be regarded as compatible with the Convention: see e.g. Petrovic, para 37, and Stec, para 52, though it should be noted that in both of those cases the court nonetheless held that the State had not exceeded the margin of appreciation allowed to it in matters of economic or social policy.

Further, in Connors the court stated that the margin of appreciation “will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights” and referred to “particular significance attaching to the extent of the intrusion into the personal sphere of the applicant” (para 82). The case itself arose out of the eviction of a gypsy family from a permanent site, in circumstances that were alleged to be in breach of article 8 because of the absence of an opportunity to challenge the allegations that were the basis of the eviction. The court stated at para 86 that “[t]he serious interference with the applicant’s rights under Art.8 requires … particularly weighty reasons of public interest by way of justification and the margin of appreciation to be afforded to the national authorities must be regarded as correspondingly narrowed”. It also observed that the case was not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. It found on the facts that the eviction was not attended by the requisite procedural safeguards and that the serious interference with the applicant’s rights could not be regarded as justified.

Important guidance on how to reconcile or bring together such competing considerations is to be found in the judgments of the House of Lords in Ghaidan and in R (Carson) v Secretary of State for Work and Pensions (cited above).

Ghaidan concerned a difference of treatment between homosexual and heterosexual couples in relation to succession to an assured tenancy under the Rent Act 1977. Lord Nicholls, giving the leading judgment, held that justification failed at the first hurdle since there was no legitimate aim. But he went on, at para 19:

“For completeness I should add that arguments based on the extent of the discretionary judgment accorded to the legislature lead nowhere in this case. As noted in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, 844, para 70, Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court’s role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person’s Convention rights. The readiness of the court to depart from the view of the legislature depends upon the subject matter of the legislation and of the complaint. National housing policy is a field where the court will be less ready to intervene. Parliament has to hold a fair balance between the competing interests of tenants and landlords, taking into account broad issues of social and economic policy. But, even in such a field, where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified ” (emphasis added).

Carson concerned regulations under which the claimant was precluded from receiving cost of living increases to her pension by reason of the fact that she was resident outside Great Britain at the date of her retirement. Their Lordships distinguished between discrimination on sensitive grounds such as gender or race “which prima facie appear to offend our notions of the respect due to the individual” (per Lord Hoffmann at para 15) and discrimination on other grounds, holding that greater scrutiny of the reasons for the discrimination was called for in the former category. Lord Walker of Gestingthorpe, whose reasoning on this point commanded general agreement, stated at para 57:

“Where there is an allegation that article 14 has been infringed by discrimination on one of the most sensitive grounds, severe scrutiny is called for” (emphasis added).

He cited the passage in Lord Nicholls’s judgment in Ghaidan that I have just quoted and the judgments of the Strasbourg court that refer to “very weighty reasons” being required to justify discrimination on these particularly sensitive grounds.

Such an approach, as it seems to me, still accords to the legislature a very real discretionary area of judgment. This is well illustrated by R (Hooper) v Secretary of State for Work and Pensions (cited above), where Lord Hoffmann stated at para 32 that “[t]he fact that the complaint concerns discrimination on grounds of sex is not in itself a reason for a court to impose its own judgment” but that the relevant issue in the case was “a social and political question within the competence of Parliament”; and at para 37, that “the courts are not in a position to say that the 1999 decision was inescapably right or that a different decision, whether earlier or later, would have been inescapably wrong. It was a matter for legislative judgment.”

Mr George contended that a stricter approach was adopted by the Court of Appeal in Ghaidan (see [2003] Ch 380), survived the decision of the House of Lords in the same case and should still be treated as binding on this court. At paras 18-19, Buxton LJ stated:

“… In seeking to discharge that burden, it is simply not enough to claim that what has been done falls within the permissible ambit of Parliament’s discretion: because all that that shows is that the decisions taken are not be regarded as necessarily unjustified. A much more positive argument is required if the burden … is to be discharged.

… The general organisation of housing policy, and in particular of public housing, … clearly involves complex questions of social or economic policy that the courts should only enter with trepidation. But I have no hesitation in saying that issues of discrimination, which it is conceded we are concerned with in this case, do have high constitutional importance, and are issues that the courts should not shrink from. In such cases deference has only a minor role to play.”

Keene LJ stated, at para 44:

“Where discrimination against a minority is concerned, amounting on the face of it to a breach of article 14 rights, the courts are entitled to require to be satisfied that a proper and rational justification for the difference in treatment has been made out. It is, as Buxton LJ has emphasised, a matter involving rights of high constitutional importance where the courts are equipped to arrive at a judgment. It is indeed a classic role of the courts to be concerned with the protection of such minority rights. That being so, this court is entitled to ask whether there is any rational and proportionate basis for the distinction ….”

Whether or not there is any difference of substance between those passages and what was said on this subject by the House of Lords in Ghaidan and Carson, this court should in my view follow the approach indicated by the House of Lords, and I would reject Mr George’s submission that we are bound by the particular formulation adopted by the Court of Appeal in Ghaidan.

It is right to say that in a case of direct discrimination on grounds of race a stricter approach is called for. In Timishev v Russia (cited above) the applicant’s complaint was that the Russian authorities had denied him entry to a particular territory because of his Chechen ethnic origin. The Strasbourg court was emphatic in its finding of a breach of article 14. It stated, at paras 56-58:

“… Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment ….

The Government did not offer any justification for the difference in treatment between persons of Chechen and non-Chechen ethnic origin in the enjoyment of their right to liberty of movement. In any event, the Court considers that no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures.”

(See also para 14.028 of Sweet & Maxwell’s Human Rights Practice, where Timishev is relied on for the proposition that discrimination on grounds of race or of actual or perceived ethnic origin could never be justified under article 14, and other points are made about the strict approach adopted towards racial discrimination.)

Mr George submitted that the present case comes very close to one of direct discrimination on grounds of race and therefore calls for the application of a very strict test, since the removal of the exemption for residential caravans was aimed at the unlawful use of land by gypsies and travellers. In my view, however, the situation here is very different from that under consideration in Timishev. The inclusion of residential caravans within the scope of the general stop notice regime cannot fairly be said to be aimed at, or to involve the targeting of, gypsies and travellers. It is aimed legitimately at the protection of the public against environmental harm. Although the problem which prompted the removal of the former exemption arose primarily from the activities of gypsies and travellers, it was the perceived harm done by those activities, rather than the race or ethnic origin of those engaging in the activities, that led to the difference in treatment. Thus, although the indirect discriminatory impact on gypsies and travellers makes it appropriate to apply the intense or severe scrutiny referred to in Ghaidan and Carson, the case does not fall within the scope of the very strict reasoning applied in Timishev to direct discrimination on grounds of race or ethnic origin.

Another general point to consider arises out of the fact that, as Mr Sales submitted, Parliament in this case has adopted a “bright line rule”. Prior to 1991, stop notices were available in any case except a dwellinghouse or residential caravan; and the change in 1991 involved an adjustment of the bright line by taking residential caravans out of the exemption and including them in the general category where stop notices were available. Thus at all material times there has been a clear-cut basis of distinction between the exempt category and the generality of cases. Stop notices cannot be applied at all to cases within the exempt category, whereas their application to other cases depends on a fact-sensitive assessment in each individual case.

There is no objection in principle to the adoption of a bright line rule; and provided that the rule adopted falls within the margin of appreciation or discretionary of judgment allowed to the legislature, it cannot be impugned on the ground that a different balance might have been struck or that a less restrictive rule could have been devised. For example, in James v United Kingdom (1986) 8 EHRR 12, concerning the rights of acquisition conferred on tenants by the Leasehold Reform Act 1977, the Strasbourg court rejected a submission by the applicant landlords that the legislation should have provided for independent consideration of the justification for enfranchisement in each particular case. It held, at para 68, that such a system might have been possible, but “Parliament chose instead to lay down broad and general categories within which the right of enfranchisement was to arise” and that the system chosen could not be dismissed as irrational or inappropriate.

So too in Blecic v Croatia (cited above), at para 64, the Strasbourg court stated:

“The Court accepts that where state authorities reconcile the competing interests of different groups in society, they must inevitably draw a line marking where a particular interest prevails and another one yields, without knowing precisely its ideal location. Making a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves balancing conflicting interests and allocating scarce resources on this basis, falls within the State’s margin of appreciation.”

A further strong statement to similar effect is to be found in Evans v United Kingdom (2006) 43 EHRR 21, in the context of IVF treatment where the State was held to have a wide margin of appreciation. The court stated, at para 68:

“The Court accepts that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the ‘bright-line’ at the point of creation of the embryo. It notes in this regard that the latter solution has been adopted in a number of Member States of the Council of Europe. However, the central question in terms of Art.8 of the Convention is not whether a different solution might have been found by the legislature which would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it did, Parliament exceeded the margin of appreciation afforded to it under that Article ….”

At para 74 the court held that the reasons given for finding that there was no violation of article 8 also afforded a reasonable and objective justification under article 14. Mr George pointed to passages in the dissenting opinion of two members of the court in which it was stated that exceptions to a bright line rule should be allowed where the rigid application of such a rule could lead to irreparable harm or to the destruction of the essence of one party’s rights; bright line legislation is exceptional and must be strictly scrutinised by the court. It suffices to note, however, that that more limited approach towards bright line rules did not represent the reasoning of the majority of the court.

Examples of domestic cases in which bright line rules have been found acceptable are Hooper (cited above), where Lord Hoffmann observed at para 16 that “[n]o doubt means testing would have been more discriminating but the use of more complicated criteria increases the expense of administration and reduces take-up by those entitled”; and Carson, where Lord Walker concluded at para 91 that “[d]emarcation lines of this sort have to be reasonably bright lines, and the task of drawing them is … ‘peculiarly a legislative task and an unavoidable one’”.

All of this means that the provision in the present case is not automatically open to challenge on the basis that a less restrictive solution would have been possible. The “less restrictive alternative” test is not an integral part of the analysis of proportionality under article 14. Mr Sales drew our attention to a work by Yutaka Arai-Takahashi, “The Margin of Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of the ECHR”, in support of the proposition that the “least onerous measure” or “less restrictive alternative” doctrine features only in certain specific Convention contexts where a particularly intense standard of proportionality is applied, but does not feature in the context of article 14. I found the extracts provided to be of limited assistance, but the authorities to which I have already referred make clear in any event that the existence of a less restrictive alternative does not necessarily take a measure outside the margin of appreciation or discretionary area of judgment. (There may be a difference in this respect between article 14 and cases conditioned by the test of proportionality under EC law. For example, in Secretary of State for Defence v Elias [2006] EWCA Civ 1293, it was held that, in considering the justification for indirect discrimination under the Race Relations Act 1976, part of the test of proportionality is whether “the means chosen [are] no more than is necessary to accomplish the objective” (para 165; see also paras 293 and 303). An express distinction was drawn between the context in that case and article 14 ECHR: see para 174.)

It does not follow that the existence of a less restrictive alternative is altogether irrelevant in the context of article 14. It seems to me that in an appropriate case it can properly be considered as one of the tools of analysis in examining the cogency of the reasons put forward in justification of a measure; and the narrower the margin of appreciation or discretionary area of judgment, or the more intense the degree of scrutiny required, the more significant it may be that a less restrictive alternative could have been adopted. It is not necessarily determinative, but it may help in answering the fundamental question whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

Finally I should mention an argument by Mr George to the effect that article 14 gives rise to a positive obligation to take action to secure equal treatment and that this should lead to the application of a stricter test by the court when considering the proportionality of the measure in question. He was unable to point to any authority in support of the submission, which in my view lacks substance.

I turn to examine the facts of the present case in the light of the principles considered above.

It is worth repeating that a stop notice can be served where a local planning authority considers it expedient that an activity specified in a related enforcement notice should cease before the expiry of the period for compliance with that enforcement notice; and the issue is whether it is justified to confer an exemption where the relevant activity consists of use of a building as a dwellinghouse but no exemption where the relevant activity consists of use of land as the site for a caravan occupied by a person as his only or main residence.

It can readily be seen why the legislature thought it appropriate to confer an exemption in respect of dwellinghouses. In general, a local planning authority will have sufficient opportunity to take enforcement action in relation to the construction of a new building before the building is occupied at all and therefore at a time when the dwellinghouse exemption will not apply. Cases where enforcement action is required in respect of the use of a building as a dwellinghouse, as opposed to its construction, will generally be limited to cases of change of use of an existing building from non-residential to residential use. In those cases the harm to the environment is likely to be low and the need for urgent enforcement action through issue of a stop notice correspondingly limited. On the other side of the balance, the effect of a stop notice, if complied with (and criminal sanctions may attach to non-compliance), will be particularly serious since it will require the occupier to leave his home.

It is of course true that whether serious harm is caused will depend on all the circumstances of the individual case and that one can envisage the possibility of individual cases where use of a building as a dwellinghouse might cause serious harm such as to make it appropriate for stop notice powers to apply. Mr George gave the example of residential use of a prefabricated building of the “Swiss chalet” style which had been rapidly erected (so that the local planning authority did not have time to take enforcement action prior to its occupation) in a highly visible setting or a protected ecological area. He also argued that circumstances could arise where, because of the various incidents of residential use (lighting, parked cars, washing lines, etc.), the mere change from non-residential use to residential use of an existing building in a highly visible setting might cause serious harm. In my judgment, however, such instances are likely to be highly exceptional; and on the basis of the position overall, there is in my judgment a cogent case for a simple bright line rule exempting the use of a building as a dwellinghouse from the stop notice regime.

There are clear differences between the position of dwellinghouses and that of residential caravans. Caravans can be brought rapidly onto land in breach of planning control, without the possibility of prior enforcement action; and such action can have serious adverse effects on public amenity, as regards both visual impact and other forms of environmental harm. The view expressed in the Carnwath report, on the basis of which the legislature acted in removing the previous exemption, was that the potential damage caused by unlawful caravan sites could be considerable. The continuing validity of that view is supported by evidence filed on behalf of the Secretary of State in the form of a witness statement made in December 2004 by Mr John Stamboullian, who was at that time Head of the Planning Control Division in the Office of the Deputy Prime Minister. He states at para 19:

“Evidence has shown that unauthorised development to establish a residential caravan site can be rapid, planned and systematic. In a short space of time, caravans can be moved onto the land (for which planning permission for the siting of residential caravans would be required), hardstanding and roadways put in place, tarmac laid, hedges removed, services including water and power connected. As this kind of development proceeds it can impose increasingly long-lasting and in some cases irreparable damage. Once the development is complete, continued occupation can pose an ongoing serious impact on highway safety, to wildlife and habitats and in some cases to community related issues, such as the effect on educational or health facilities. The reality of the situation is that if the breach of planning control is not dealt with effectively at the earliest stage, for example by a stop notice, it often becomes increasingly difficult to remedy the breach later. This may be particularly important in terms of environmental damage, for example by the laying of roads, or the removal of hedgerows.”

The facts of the present case provide a good illustration of the problem. So do those of Coates v South Bucks District Council [2004] EWCA Civ 1378. In such cases the need for urgent enforcement action through the issue of a stop notice may be very great - even if, in practice, stop notices are frequently not complied with despite the criminal sanctions attaching to them.

On the other side of the balance, the issue of a stop notice in respect of use of land as the site for a residential caravan will not necessarily prevent the occupier from continuing to occupy the caravan as his home. In complying with the notice, the occupier may well be able to move the caravan somewhere else without ceasing to reside in it. That is not to deny the potentially serious effect of a stop notice in such a case or its potential to interfere with the article 8 rights of occupiers of caravans; but it does provide a further material point of distinction between residential caravans and dwellinghouses.

The force of the point is weakened, but not removed, by the fact that there is in many areas a severe shortage of lawful sites for gypsy caravans, so that removal of a caravan from an unauthorised site in compliance with a stop notice may simply force the occupier back onto the road or onto another unauthorised site. The fact remains, as Mr Sales submitted, that caravans can be moved in a way that buildings cannot. Mr Sales also laid emphasis on evidence that the Secretary of State is continuing to take steps, by the imposition of requirements on local planning authorities through the planning system, to ameliorate the difficulties that gypsies face in finding suitable sites; but I would not give much weight to that consideration either in the context of this particular point or in the assessment of proportionality more generally.

I would therefore reject Mr George’s submission that no material distinction can be drawn for these purposes between the unauthorised stationing of a residential caravan on land and unauthorised development to which the dwellinghouse exemption applies. In my judgment there is a clear distinction between the two situations, both as regards the harm that they are likely in general to cause and as regards the general effect of a stop notice on the ability of occupiers to remain in their home.

A further consideration relevant to the assessment of proportionality is that, by virtue of the duty imposed by section 6 of the Human Rights Act 1998, a local planning authority must comply in any event with the Convention rights of occupiers of land, so that the issue of a stop notice in an individual case will be lawful only if it respects any article 8 rights of the occupiers. The existence of the section 6 duty does not provide the same degree of protection as an exemption from the stop notice regime, since any challenge on article 8 grounds to the issue of a stop notice must be brought by way of judicial review (which is dependent in turn on finding legal assistance and obtaining funding) and failure to comply with the stop notice unless and until a stay is ordered by the court will be a criminal offence. Nevertheless the section 6 duty, together with the consequential need for a local planning authority to consider carefully whether enforcement action will respect the Convention rights of those affected, does provide a significant measure of protection and reduces the practical difference between being subject to the general stop notice regime and being exempt from that regime. Whilst that is not sufficient to justify the difference in treatment, it means that the difference requiring justification is not as great as might appear at first sight.

Taking all those considerations into account, I am satisfied that there are cogent reasons for a bright line rule that exempts dwellinghouses from the stop notice regime but does not apply the same exemption to residential caravans. It is, however, necessary to go further than that and to consider whether the complete absence of an exemption for residential caravans is justified or whether, so long as dwellinghouses continue to be exempt, some half-way house in the form of a qualified exemption for caravans is required in order to meet the test of proportionality.

Mr George’s argument relies heavily on the qualified exemption for residential caravans that applies under the recently introduced temporary stop notice regime. He submits that an exemption in the same or similar terms would be sufficient to meet the aim of protection against serious harm to amenity under the ordinary stop notice regime, and that the more restrictive approach of withholding an exemption altogether from residential caravans can therefore be seen to be disproportionate. In order to assess that argument it is necessary to look more closely at the temporary stop notice regime and the reasons for the particular approach adopted in it.

In his witness statement, Mr Stamboullian explains that the origins of the temporary stop notice regime lay in a Planning Green Paper in 2001 and a consultation paper in 2002. The overwhelming majority of respondents to the consultation paper agreed that provision should be made in legislation to enable a stop notice to be issued at the start of unauthorised development and before an enforcement notice was served. As a result of those responses the government decided to introduce the temporary stop notice as a new enforcement power in what became the Planning and Compulsory Purchase Act 2004.

The witness statement emphasises that the circumstances in which a temporary stop notice may be used are materially different from those in which an ordinary stop notice may be used. An ordinary stop notice may only be issued with an enforcement notice, i.e. at a stage after a local planning authority has had an opportunity to consider in some detail the competing considerations affecting planning control and the interests of the person developing the land. But the main point in introducing the temporary stop notice regime was to enable a local planning authority to take action at a very early stage, against development which appears to pose a risk of immediate or irreparable harm, on the basis of the facts as they immediately appear to it and before it has had a full opportunity to gather and consider all the evidence which may ultimately be relevant to a final decision on the planning merits. The object of the temporary stop notice is to “hold the ring” and stop further development for a short time while more detailed evidence may be assembled and given full consideration.

The witness statement also states that this feature of the temporary stop notice regime means that there is a somewhat greater risk that such a notice could be used, for the best of motives, where ultimately it may transpire it should not have been. Since only a very limited consideration of the planning and human rights issues was likely to be possible before action had to be taken as a matter of urgency, the Secretary of State was considering at the date of the witness statement whether it was appropriate to place more stringent controls on the use of temporary stop notices, by means of regulations made under section 171F, than applied in relation to ordinary stop notices.

The form of regulations that the Secretary of State was then considering, and which he subsequently adopted, provided for an exemption in respect of the stationing of a residential caravan on land “unless the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect” (see para 22 above for the full text of the relevant regulation).

Mr Stamboullian’s witness statement explains the reasoning that led to the adoption of a regulation in that particular form:

“44.

… Ministers have considered further the most appropriate and proportionate approach on the degree to which the TSN [temporary stop notice] regime should give protection to those stationing caravans on land. Having reviewed matters carefully, including circumstances in which unauthorised development of caravan sites occur and the damage they can cause, Ministers have reached the conclusion that in cases of very serious harm, TSNs should be capable of being used in respect of caravans to require their removal from a site. In other words, on reflection, Ministers consider that the forms of immediate harm which may be caused by the stationing of caravans on land in breach of planning controls may be so severe that a complete exemption from the TSN regime would not be justified. An example of a case where it is envisaged the TSN might be used would be where caravans have moved onto a Site of Special Scientific Interest, as has happened recently.

…

47.

Therefore, in relation to caravans, in all but the most serious cases, i.e. those where the stationing of caravans presents a threat to a compelling public interest (e.g. where endangered habitats are threatened of where there are real public safety or public health concerns), TSNs will not be able to be served. In the category falling outside the most serious cases, TSNs will only be served to prevent more caravans joining a site or further development of the site.”

Government guidance (contained in ODPM Circular 02/2005) on the use of temporary stop notices gives further examples of locations where it is said that the unauthorised stationing of a caravan would normally be unacceptable: SSSIs where an encampment endangers a sensitive environment or wildlife; grounds of ancient monuments or listed buildings, battlefields or sites of potential archaeological interest; a site where pollution from vehicles, or dumping, or from poor sanitation could damage ground water or water courses; a derelict area with toxic waste or other serious ground pollution; the verge of a busy road where fast traffic is a danger to unauthorised campers; where the site is exposed to unacceptable levels of air pollution; and where there is an immediate negative impact on the health of the occupiers of the caravans.

Further details of the history behind the qualified exemption is given in Parliamentary material to which the appellant has drawn attention, namely a report by the Joint Committee on Human Rights on “The Convention on the Elimination of Racial Discrimination” (14^th Report of Session 2004-2005) and a report by the Merits of Statutory Instruments Committee of the House of Lords (11^th Report of Session 2004-2005). During the passage of the Planning and Compulsory Purchase Bill through Parliament, the Joint Committee had expressed concern that temporary stop notices might lead to a breach of article 14 read in conjunction with article 1 of the First Protocol, but had been assured by the government that it was intended to provide by regulations that temporary stop notices should not prohibit the use of caravans as an only or main place of residence (i.e. mirroring the exemption for dwellinghouses). Subsequently, however, the government adopted a different approach, under which the exemption in respect of residential caravans was qualified in the manner now reflected in the regulations. According to a ministerial statement, “[t]his approach strikes an appropriate balance between the needs of Gypsies and Travellers and rights of local authorities to take action against unauthorised development in those particular circumstances where this is causing serious and immediate harm”. The Joint Committee expressed concern that the government’s approach had been altered “in a way which may have significant human rights implications” and, having regard to information given about the use of stop notices in practice, that “the differential treatment of the homes of Travellers permitted by the regulations risks breach … of Article 14 ….”

Notwithstanding the concern expressed by the Joint Committee, which might be thought to apply a fortiori to the absence of any exemption for residential caravans under the ordinary stop notice regime, I have come to the conclusion that the differential treatment of residential caravans under that regime is justified. I have already indicated my view that there are cogent reasons for not applying to residential caravans the same exemption as applies to dwellinghouses. I do not think that the solution adopted in relation to temporary stop notices compels the adoption of a similar approach in relation to ordinary stop notices in order to meet the test of proportionality. In my view there are material differences between the temporary stop notice regime and the ordinary stop notice regime, such that the adoption of a qualified exemption for residential caravans in the former does not undermine the justification for the absence of any exemption for residential caravans in the latter.

First, the intention is that temporary stop notices should be used with even greater urgency than ordinary stop notices, and before there is time to investigate and reach a considered decision on the issue of an enforcement notice which is a precondition to the use of an ordinary stop notice. Decisions will have to be taken under great pressure of time, often by officials operating under delegated powers. The scope for error, in the sense that a notice may be issued in circumstances that turn out on fuller investigation to have been inappropriate, must be significantly greater than in relation to the issue of ordinary stop notices in the context of a considered decision to issue an enforcement notice. This may also conduce to an increased risk of arbitrary distinctions being drawn between individual cases, depending on the degree of caution exercised by individual officials in the light of the risk of error. In those circumstances, and given the potential for interference with article 8 rights, the case for a bright line rule conferring some form of exemption for residential caravans is clearly stronger in relation to temporary stop notices than in relation to ordinary stop notices.

Secondly, the qualification to the exemption conferred is intended to deal with particularly serious cases where a compelling public interest calls for immediate action. There is a perfectly intelligible basis for the inclusion of a qualification in those terms. However, circumstances falling within the high threshold adopted in this particular context are plainly not exhaustive of the circumstances in which it is appropriate to take enforcement action aimed at protection against serious harm to amenity, including enforcement action through the use of ordinary stop notices.

Thus there is no precise parallel between temporary stop notices and ordinary stop notices, and the qualified exemption for residential caravans in relation to the former cannot automatically be transposed to the latter. The situations are different and the relevant reasoning is different. The case for exemption is stronger in relation to temporary stop notices and the form of qualified exemption adopted involves a higher threshold than is appropriate when considering ordinary stop notices.

It is true that the temporary stop notice regime points to a general approach that could be adopted for ordinary stop notices if the case for exemption were sufficiently strong in the first place: there could be a qualified exemption there too, but with the qualification expressed in broader terms than in the temporary stop notice regime so as to enable a notice to be issued where, for example, “the risk of serious harm to amenity outweighs the benefit to the occupier from the stationing of the caravan on the site for the period for which the stop notice has effect”. But that would bring the position very close to the exercise that has to be carried out anyway in individual cases even in the absence of a qualified exemption. In any event, the fact that such a solution would be possible does not mean that the adoption of a different solution, namely the absence of any exemption, is necessarily disproportionate.

The conclusion I have reached is that the differential treatment in issue in this case is justified. There are cogent reasons for conferring an exemption in respect of dwellinghouses but not in respect of residential caravans. The case for exempting residential caravans from the ordinary stop notice regime is insufficiently strong to render it disproportionate to have no exemption at all rather than some form of qualified exemption. The qualified exemption adopted for temporary stop notices does not compel the adoption of the same or a similar solution for ordinary stop notices. The bright line rule adopted by Parliament falls within the legislature’s discretionary area of judgment.

I should stress that this is a case where clear reasons have been put forward for the differential treatment, and it has been possible for the court to examine those reasons in depth and to reach a considered view on their cogency. In my judgment that approach satisfies the requirement to give cases of this kind the intense or severe scrutiny called for in Ghaidan and Carson.

Crane J reached the same conclusion, for reasons more briefly expressed. His essential reasoning was expressed in two concluding paragraphs:

“40.

While, as I have explained, I cannot give great weight to several of the arguments raised by Mr Sales on behalf of the Secretary of State, I have come to the conclusion that his principal argument, that usually a change of use of a building to a dwelling will cause less immediate environmental damage than stationing of a residential caravan, is correct. In those circumstances the ‘bright line’ rule in relation to dwellings only is in my view proportionate and a regime such as that for temporary stop notices is not required by considerations of proportionality.

41.

It is highly relevant that the difference in treatment is not between an inability to issue a stop notice on the one hand and freedom to do so without regard to the Convention rights of gypsies and travellers on the other. It is between an ability to issue a stop notice and an ability to do so after taking into account Convention rights.”

The grounds of appeal raise various “procedural” criticisms of Crane J’s judgment, contending that the reasoning was inadequate and that there was a failure to adopt an appropriately structured approach to the issue of proportionality. For those points the appellant relies inter alia on passages in Coates v South Bucks District Council (cited above), in particular at para 7 (per Lord Phillips MR) and para 28 (per Sedley LJ), and in Machado v Secretary of State for the Home Department [2005] EWCA Civ 597 at para 41, concerning the approach that a court should adopt when considering an issue of proportionality.

In the event, however, we did not hear any detailed argument on those matters, because Mr George recognised the force of the point made by Mr Sales that such arguments added nothing to the substantive issues, which this court would have to reconsider in any event in reaching its own decision.

For my part, I am satisfied that nothing can turn on the procedural criticisms of Crane J’s judgment. Even if there were any substance to them, they would not provide a good ground of appeal in circumstances where I have reached the same conclusion as the judge did, for reasons that include the two main reasons he put forward. I therefore propose to say nothing further on the issue.

For the reasons I have given, I would dismiss this appeal.

I agree. The clear and comprehensive reasons advanced by Richards LJ for dismissing this appeal afford me an undeserved opportunity to highlight some features of this appeal which, I believe, require emphasis. The legislation impugned involves an attempt to find a solution to the difficult conflict between the need to protect the environment and the needs of a section of our community which so many find difficult to appreciate. It is of importance in considering the issues, which this appeal raises, to bear in mind that in the past no clear solution, no one answer has been found to resolve that conflict; it is unlikely that one will be found in the immediate future. In measuring the legislative solutions to that conflict against the standards of the ECHR, the court must recall that there is no easily discernible correct solution and, accordingly the instant case is yet another example of a legislative decision which is neither “ inescapably right” nor “inescapably wrong” (to adopt Lord Hoffmann’s description in Hooper at paragraph 37).

It is not surprising that the problem defies easy resolution. Sarah Spencer, a Commissioner for Racial Equality, shows how the problem continues: [2005] EHRLR 335, Gypsies and Travellers; Britain’s Forgotten Minority. Romany Gypsies and Irish Travellers are distinct ethnic groups who have throughout their long history faced hostility and rejection. To live in permanent housing is anathema to many, but it does not follow that they wish to travel frequently. A caravan may be positioned with such attendant facilities that it can no longer move. But it is nonetheless a home which is radically different from one built of bricks and mortar. The law requires society to accept and understand that difference. The difficulty arises because of the limited number of sites on which caravans may lawfully be placed. In 2003-4, it was recorded that at least 4500 new pitches were needed (HC-633-I, November 8, 2004). Despite the assurances which Richards LJ records (paragraph 70), there has been little improvement in the provision of legal sites. Gypsies and Travellers feel compelled either to pitch their caravans on land belonging to others or to buy their own land for caravan use without planning permission. The possibility of obtaining planning permission, as Sarah Spencer records, is slim.

But such unlawful activity causes the harm to the environment identified by Mr Stamboullian and recorded by Richards LJ at paragraph 68. Enforcement designed to prevent that harm will often require urgent action. By the time the period for compliance has expired, pursuant to section 173(8) of the 1990 Act, the damage to the environment may be irreparable, or it may not be possible to rectify it for a long time. All the more so where the time for compliance is extended by the operation of an appeal (s.175(4)). This explains the need for the issue of a stop notice, accompanying the enforcement notice, pursuant to s.183 of the 1990 Act.

It seems to me to be of considerable significance, in assessing the justification for removal of the caravan exemption, that when the stop notice regime was first introduced, there was no discrimination between dwelling houses and residential caravans. But the experience of the years between 1977 (the year of the amendment to enlarge the scope of stop notice) and 1989 (the year of the Carnwath Report) taught that the exemption in respect of residential caravans inhibited the ability to protect against serious damage. The legislature, thus, had an empirical basis for removing the exemption. The removal of the exemption was only in response to the history of damage caused by residential caravans exempt from stop notices. This lends force to the justification for its removal.

Further experience of the stop notice regime, between 1991 and 2004, demonstrated the need for even more urgent action, where the damage feared from unlawful action is such as to require immediate activity. But the legislature recognised that as the need for urgent action increases, so the time for consideration diminishes. Recognition of that significant feature justifies a limited re-instatement of the residential caravan exemption. But it is only limited; it will not afford exemption in cases of the most pressing need for immediate action.

To my mind, this legislative scheme in its reflection of an increasing scale of urgency in the need to prevent harm, and its recognition of the effect of that urgency on time for consideration, presents a clear picture of justification. In the case of change of use of a building to a dwelling house, the environment may generally be protected without the need for a stop notice. A bright line rule of exemption will not inhibit effective action being taken to protect damage to the environment caused by such a change of use, for the reasons identified by Richards LJ at paragraphs 66-67. In contrast, exemption does affect the power to take effective action against the damage caused by residential caravans. But in such cases, since a stop notice can only be issued when accompanied by an enforcement notice, there is, at least, some time for consideration, as there must be, of the propriety of issuing the notices in the context of the occupiers’ rights under article 8, and in particular in the light of the need to respect their identity as Gypsies or Travellers. At what may be described as the top of the scale of urgency, where there is no time for proper consideration, action may only be taken against a residential caravan in cases of dire necessity, otherwise residential caravans are exempt.

Against the need for protection of the environment must be weighed the rights of those such as the applicant, whose way of life and identity depends upon the liberty to remain uncaged and to make their homes in a caravan. Any immediate preventative action, even if temporary, is likely merely to renew a miserable search for somewhere else to live and its consequential cycle of confrontation and eviction. There is no easy resolution of this conflict.

The Court must recognise this when seeking to impose the standards of the Convention. But in questioning whether the balance has been struck in a way which is justified, it is necessary to consider the impact of the removal of the exemption on Gypsies and Travellers who have undertaken unlawful development. It must be recalled that the mere fact that their number exceeds the number of available places is not itself an impediment to action taken to stop the unlawful activity (see paragraph 98 in Chapman). The removal of the exemption does not preclude special consideration of the needs and different lifestyle of the Gypsies and Travellers, which article 8 requires. The planning authority must consider such rights before issuing the stop notice accompanied by the enforcement notice (see paragraph 72 of Richards LJ’s judgment). The impact of the removal of the exemption does not remove the obligation on planning authorities to consider the special position of Gypsies or Travellers and the effect in individual cases of the issue of a stop notice. Special consideration of the impact on a Gypsy or Traveller is integral to the process of issuing a temporary stop notice which can only be issued against a residential caravan where the full-out words of Regulation 2(2)(b) apply. Further, whether a stop notice is issued or not, rights under article 8 may be asserted in an appeal against an enforcement notice.

The fact that the removal of the exemption does not entail an abandonment of the obligation properly to consider the special situation of Gypsies and Travellers is a powerful factor in considering the proportionality of the measure. This is in marked contrast to the effect of the bright line rule in the Leasehold Reform Act 1967. That bright line rule deprived the trustees of the 2^nd Duke of Westminster’s will of their interests, without any opportunity for independent consideration (see paragraph 68 in James). The shift in the bright line rule which excludes exemption for residential caravans has the opposite effect; it permits the necessary consideration of facts relevant to the individuals in question. It was the very absence of such consideration, as part of a system of procedural protection for Gypsies and Travellers, which constituted the violation condemned in Connors. The measure impugned in the instant appeal does not remove the necessary procedural protection; it merely removes immunity.

Such immunity is, in any event, only for a limited period. Even those who unlawfully change non-residential to residential use will be compelled to justify their unlawful activity at the expiry of the period for compliance with any enforcement notice.

This limited effect of the removal of exemption seems to me the most compelling feature justifying the admitted indirect discrimination. I would be happy to march arm in arm with Mr George QC in his fight to secure equal treatment if I thought it would lead anywhere in this appeal. But like Richards LJ (at paragraph 63) I do not see how it does. To assert an obligation to secure equal treatment begs the very question which must be determined in this appeal. The justification for the removal of the exemption entails demonstrating that the opportunity for preventing damage to the environment caused by change of use of a building is not the same when such damage is caused by a residential caravan. Justification depends on demonstrating the dissimilarity of the two situations. If, as I accept, the opportunities for effective enforcement are more limited in the case of residential caravans, then Mr. George’s admirable reminder of the importance of equal treatment for those who belong to different ethnic groups is of no assistance. Different cases call for different treatment.

In reaching my conclusion in agreement with Richards LJ, I must confess to having more difficulty than he demonstrates, in expressing the yardstick I have applied in examining the cogency of the justification advanced on behalf of the Secretary of State. I am not sure these cases ever depend on where the burden of establishing the existence or absence of sufficient justification lies. Nor do the different descriptions of the quality of scrutiny bestowed reveal any difference of approach in reality. Few judges confess to exercising scrutiny which is less than intense, severe or, in another context, anxious. Few courts will be satisfied with reasons which are not cogent.

Nor do I derive much assistance, in the instant appeal, from the dispute whether only a measure which is the least restrictive will satisfy the requirements of a reasonable relationship between the means employed and the aim to be achieved. While, I suppose, in relation to temporary stop notices the qualified exemption for residential caravans may be described as part of a less restrictive system of enforcement, it must again be recalled that it does not confer any immunity against the issue of a stop notice and enforcement against unlawful activity. Besides, it is qualified and does not preclude enforcement where the local planning authority considers the risk of harm outweighs the benefit to the occupier of the residential caravan (Regulation 2 of the 2005 Regulations). As Richards LJ demonstrates (paragraphs 83-85), temporary stop notices are designed to deal with a more urgent risk than stop notices accompanied by enforcement notices. But even in cases where immediate action is not required, an effective system of enforcement requires the power to issue a stop notice. In such cases there is both an obligation and opportunity for the local planning authority to consider rights under article 8 in a balancing exercise which closely approximates to the approach set out in Regulation 2. Thus, it seems to me idle to point out that the absence of exemption represents a more onerous system of enforcement. So it is. But it has been established that that is necessary to maintain an effective system to protect the environment.

Finally, like Richards LJ, in paragraphs 30-39, I agree that Mr. George’s attempt to comment on an absence of discussion in Parliament is impermissible. I do not read anything said by Auld LJ in Westminster City Council as inconsistent with the principle that a comment on the absence of consideration or discussion in Parliament contravenes article 9 of the Bill of Rights. He was merely advancing mitigation for the fact that the legislature had overlooked the discriminatory effect of s.185 of the Housing Act 1996. I agree that there is no inconsistency between the approach of the ECtHR and the proscription in article 9 (paragraph 38). The task of that court is to examine whether the High Contracting Parties have complied with their treaty obligation; our courts are not permitted to police the legislature, but rather to assess legislation against the standards imposed by virtue of the Human Rights Act, 1998. In the instant case, I am satisfied the solution adopted complies with those standards. I agree that the appeal should be dismissed.

I agree that the appeal should be dismissed for the reasons given in both judgments.