Mitchell & Anor, R (on the application of) v Horsham District Council

Introduction. The claimants and their families are Romany Gypsies currently living in mobile homes (caravans) on land that they claim to own at North Lane, Ashington, West Sussex (“the site”). At one stage there were three such families resident on the land in question, namely: (i) Colin Harris and his wife and three children:- Colin (8 years), Anic (6 years) and Phoebe (3 years); (ii) John Hearne and his wife and two children:- James (4 years) and Jessie (2 years) and (iii) Nayley Mitchell and his wife and 3 children:- Nayley (10 years), Shelley (9 years) and Shane (7 years). Broadly speaking, the two named claimants own one third of the site each. The Defendant (“the Council”) is the Local Planning Authority for the area in which the site is situated.

In these proceedings the claimants seek appropriate relief by way of Judicial Review of three decisions made by the Council, whereby it decided to take direct action pursuant to section 178 of the Town and Country Planning Act 1990, as amended (“the 1990 Act” - as to the material provisions of which, see below), so as to remove the various mobile homes and touring caravans that are stationed on the site (including those owned and occupied by the claimants), in order to secure compliance with various effective enforcement notices relating to the site, such decisions having been respectively made on or immediately prior to the following dates: 24^th April 2002, 13^th June 2002 and 1^st July 2002. Hereafter, for convenience, I will refer to the Council’s three decisions collectively as “the Council’s decision to take direct action.”

The Legislative Framework. So far as material, the relevant sections of the 1990 Act provide as follows:

“171A. – (1) For the purposes of this Act –

(a)

carrying out development without the required planning permission …

constitutes a breach of planning control.

(2)

For the purposes of this Act –

(a)

the issue of an enforcement notice …

constitutes taking enforcement action.”

“172. – (1) The local planning authority may issue a notice (in this Act referred to as an “enforcement notice”) where it appears to them –

(a)

that there has been a breach of planning control; and

(b)

that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.

(2)

A copy of an enforcement notice shall be served –

(a)

on the owner and on the occupier of the land to which it relates; and

(b)

on any other person having an interest in the land being an interest which, in the opinion of the authorities, is materially affected by the notice.

(3)

the service of the notice shall take place –

(a)

not more that twenty-eight days after its date of issue; and

(b)

not less than twenty-eight days before the date specified in it as the date on which it is to take effect.”

“173.

– (1) An enforcement notice shall state –

(a)

the matters which appear to the local planning authority to constitute the breach of planning control …

…

(3)

An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4)

Those purposes are –

(a)

remedying the breach … by discontinuing any use of the land or by restoring the land to its condition before the breach took place …

…

(8)

an enforcement notice shall specify the date on which it is to take effect and, subject to sections 175(4) and 289(4A), shall take effect on that date.”

“174. – A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.

(2). An appeal may be brought on any of the following grounds–

(a)

that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted …

(b)

…

(3)

An appeal under this section shall be made either–

(a)

by giving written notice to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect …

(4)

A person who gives notice under subsection (3) shall submit to the Secretary of State, either when giving the notice or within the prescribed time, a statement in writing–

(a)

specifying the grounds on which he is appealing against the enforcement notice; and

(b)

giving such further information as may be prescribed.”

“175.

– (1)The Secretary of Statemay by regulations prescribe the procedure, which is to be followed on appeals under section 174 …

…

(4)

Where an appeal is brought under section 174 the enforcement notice shall subject to any order under s.289(4A) be of no effect pending final determination or the withdrawal of the appeal.”

“177. – (1) On the determination of an appeal under section 174 the Secretary of State may –

(a)

grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control …”

“178. – (1) Where any steps required by an enforcement notice to be taken are not taken within the period of compliance with the notice, the local planning authority may –

(a)

enter the land and take the steps; and

(b)

recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so. …”

“179. – (1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2)

Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.

(3)

In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

(4)

A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.

(5)

A person who at any time after the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence.

…

(7)

Where –

(a)

a person charged with an offence under this section has not been served with a copy of the enforcement notice; and

(b)

the notice is not contained in the appropriate register kept under section 188,

it shall be a defence for him to show that he was not aware of the existence of the notice. …”

“180. – (1) Where, after the service of –

(a)

a copy of an enforcement notice …

planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as is inconsistent with that permission. …”

“181. – (1) Compliance with an enforcement notice, whether in respect of–

(a)

the completion, removal or alteration of any buildings or works;

(b)

the discontinuance of any use of land; or

(c)

any other requirements contained in the notice,

shall not discharge the notice.

(2)

Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice. …”

“187B. – (1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injection, whether or not they have exercised or are proposing to exercise any of their powers under this Part.

(2)

On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. …”

“188. – (1) Every district planning authority … shall keep in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect –

(a)

to enforcement notices …

which relate to land in their area.”

…

(3)

Every register kept under this section shall be available for inspection by the public at all reasonable hours.”

“285.

– (1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought. …”

The Factual Background. The total area of the site is approximately 0.98 hectares (2.4 acres). The site is not within any built up area defined in the Local Plan and it lies to the north of the built up area of the village of Ashington. It is accessed from North Lane, which is a lane that joins the southern carriageway of the A.24 Horsham to Worthing road. The immediate vicinity of the site consists of agricultural land, with occasional dwellings located along North Lane. The site previously formed part of Coombewick Farm, which is located to the south and which has been the subject of previous enforcement action by the Council.

Following investigation of various alleged breaches of planning control, the Council have issued a number of enforcement notices relating to the site, of which the following two have particular relevance to these proceedings: (i) on 22^nd March 1989, an enforcement notice was issued in respect of the unauthorised use of the site as a caravan site; and (ii) on 11^th February 1992, an enforcement notice was issued in respect of the unauthorised use of the land for the stationing of a touring caravan. It is important to note that it is common ground that each of these enforcement notices continues to be both valid and effective and that the various time limits for compliance with and appealing against each of the notices have long since expired.

In October 1999, a planning application was made for 3 stables on the site. On 22^nd December 1999, the Council refused planning permission for that development. In January 2000, a further planning application for 2 stables was submitted, but permission was refused on 21^st February 2000. In June 2000, an application for planning permission was submitted to retain a mobile home on the site, but on 6^th December 2000 the Council again refused permission and the mobile home was removed.

In January 2001, the Council received a number of complaints that hardcore was being deposited on the site. In February 2001, a further mobile home was stationed on or near the site. The then occupier was a Mr Mabey (or “Mobey”), who also claimed to be the owner of the site. He stated that he was a gipsy and that it was his intention to live on the site with his wife and five children. Although the Council warned Mr Mabey not to carry out any further development of the site without planning permission, materials continued to be delivered to site. The Council therefore sought and obtained an injunction against Mr Mabey, preventing any further mobile homes, caravans or materials from being brought on to the site.

On 16^th May 2001, a planning application for the stationing on the site of a mobile home and a touring caravan was submitted on behalf of Mr Mabey. Whilst the application was still being considered, Mr Mabey’s planning agent advised the Council that the site was now occupied by some of Mr Mabey’s relations, namely Mr and Mrs Colin Harris and their three children. It was confirmed that, although Mr Mabey still wished to pursue the application for planning permission, the mobile home and caravan were to be occupied by Mr Harris and his family. It appears that Mr Harris subsequently purchased his part of the site in January 2002 (see paragraph 5 of his witness statement). In due course, on 20^th March 2002, planning permission for this particular development was refused by the Council.

Two further caravans had also come to be stationed on or very near the site in about May 2001. These particular caravans were occupied by the claimants, Mr Mitchell and Mr Hearne, together with their respective families, each having just purchased a one third share of the site for cash: see paragraph 5 of their respective witness statements (see below). In paragraphs 7 to 9 of those witness statements, the claimants also describe in identical terms how they came to the site and their hopes and intentions for the future, as follows:

“5.

I purchased and moved onto my land in or about May 2001 from a Leonard Smith who is the Husband of Violet Smith. No transfer documents were provided to me and I paid for my land in cash. …

6.

…

7.

Before moving onto the land I resided at a County Council Gypsy Site at Yapton in West Sussex. The atmosphere on site was not suitable to bring up a young family and I decided to purchase my own piece of land as a base for my family and myself. It is my intention to remain on the land if I am allowed to. My children’s education is very important to me and it would help them to remain in the schools they currently attend. If we were forced back onto the road I am not sure my children would benefit from a stable education.

8.

On site I have a mobile home and 1 touring caravan. We would not all be able to live in the touring caravan if the mobile home was impounded by the Defendants.

9.

When I purchased the land I was unaware of any Enforcement Notices or Injunction proceedings. I am unable to read or write and Mr Smith never told me about such proceedings being issued.”

Mr Mitchell amplified his reasons for leaving the Yapton site in a draft witness statement that was produced to the court on the final day of the hearing (19^th December 2002), as follows:

“2.

I left the Yapton site because I could no longer bear it. There was widespread drug use and violence. My priority was to get away from this rather than live on my own land for the sake of it.

3.

I have never met Mr Seward. The site manager for Yapton is a man called Nigel and if he had been consulted he would have confirmed my worries and that the site was not a suitable place to bring up my children. I agree I left without paying some rent.

4.

Had I been given the opportunity I would have asked Nigel to be a witness.”

Following the arrival of the claimants on the site, further unauthorised development took place, including the laying of a track and tarmac hard-standing, the erection of timber buildings and the erection of walls.

However, it then transpired that some of the caravans had not been accurately located on the site, but had actually been positioned to a substantial extent on some adjoining land just to the east of the site. On discovering this to be the case, the owner of the adjoining land threatened proceedings to evict the claimants from his land. At about the same time the Council’s Principal Planning Officer, Ms Sarah Feist, wrote the following letter dated 25^th April 2002, which was then hand delivered to the occupiers of the various caravans:

“Dear Sir/Madam,

Re: Stationing of caravans and unauthorised residential use of land at North Lane, Ashington

I am writing to advise you that if the owner of the land that you currently occupy takes action to evict you, and you move, or attempt to move back on to the adjacent land to the west that was previously occupied, then the Council will take direct action under s. 178 of the Town and Country Planning Act 1990 (as amended), to tow you off that land. This action will be taken immediately, to ensure compliance with the valid enforcement notices that relate to this land.

The caravans will be stored for three days and then disposed of. The costs which the Council incurs in removing and storing the caravans, will be charged to the owner of the land. In the event of failure to pay, the Council will seek to recover those costs by placing a charge on the land. This may result in the sale of the land in the event of non-payment. …”

The background circumstances relating to that letter and the main subsequent events are succinctly and clearly summarised in paragraphs 2 to 16 of Ms Feist’s witness statement dated 16^th December 2002, the contents of which it is therefore convenient to quote, as follows:

“2.

At the same time as the Enforcement Notice relating to the stationing of a touring caravan was issued on 11^th February 1992, a notice was also issued in respect of the stationing of a portacabin for residential purposes … . Local residents at that time raised concerns regarding additional residential development in this area which were represented by a solicitor at the public inquiry held on 1^st December 1992. The Planning Inspector at that time concluded that the circumstances put forward did not outweigh the harmful effects of residential development in this vulnerable area, and that its retention, even for a temporary period would be contrary to the provisions of the development plan and the public interest. The appeal was therefore dismissed and the unauthorised use subsequently ceased. …

3.

On 25^th April 2002, I wrote to the occupiers of land off North Lane, Ashington advising that if they moved onto the adjoining land, the Council would take direct action immediately in order to ensure compliance with the valid notices relating to that land. The reason for this letter was that the Council had received correspondence on behalf of the owner of the adjoining land, on which the claimants were located at that time. This indicated that he was intending to pursue legal action to evict them from his land, and it was anticipated that they would move onto the land to the west that was covered by the existing notices. The letter was hand delivered to the site by the Planning Enforcement Officer and received in person by the second claimant. The Enforcement Officer was advised that the first claimant was on holiday and a letter was therefore left for his attention.

4.

I am aware that the planning enforcement officer was accompanied on 25 April 2002 by the Council’s Housing Advisory Manager who had been requested to investigate their circumstances and offer housing advice and assistance. From what the Housing Advisory Manager reported to me and from all the facts known to the Council at that time, I could see no compelling reasons that their hardship would override the harm caused by the breach of planning control.

5.

The caravans were subsequently moved onto land which was covered by the existing notices at the end of May 2002. On 27^th May 2002, correspondence was received from Alexander & Co, the claimant’s (sic) solicitor that suggested that the delegated Authority prepared by the Council did not take into account their clients (sic) personal circumstances.

6.

On 30^th May 2002, the Housing Advisory Manager again visited the site to reassess the situation and to see if the Gypsies would give him any more information regarding their personal circumstances. This was also considered appropriate as the caravans had recently been moved from the adjoining land. He told me that they refused to do so and were not interested in seeking his help.

7.

On 10^th June 2002, I telephoned the Traveller Education Need Support Unit at West Sussex County Council and spoke with Chrissy Gisby, one of the field officers. She confirmed the names of all the family members that were residing at the site and which school and pre-schools the children were attending. She advised that the claimants and their families were previously resident at the Ryebank site, and that the children had attended the local school. She was not aware of any medical conditions that should be taken into account.

8.

On 6^th June 2002, a letter was sent from the Council to …. the claimant’s (sic) solicitors requesting further information. I now produce a copy of that letter dated 6^th June 2002… . It was requested that this information be provided by 13^th June 2002 and confirmed that the Council would not seek to take direct action until after that date, and that the Council had reviewed the information provided.

9.

A letter was received by facsimile on 10^th June 2002 from Alexander & Co confirming the queries that had been raised by the Council. I now produce a copy of that letter dated 10^th June 2002…

10.

On 11^th June 2002, I telephoned the Gypsy Liaison Office of West Sussex County Council and spoke with John Pears, a Gypsy Liaison Officer. … and as a result of what he advised, I decided that the Gypsies did not have to leave the designated site and could return to the site. I took into account the circumstances of the Gypsies as described by their Legal Representatives, investigations carried out by the Housing Advisory Manager and the impact on the Human Rights of the residents and I concluded that the harm caused by the breach of planning control was greater than the hardship that the Gypsies would suffer if they had to leave the site and the proposed course of action was therefore necessary and proportionate.

11.

The decision to take direct action and the way that this decision was reached is compatible with relevant government policy, circular advice and local planning policies. These considerations are set out in paragraphs 2.2 and 2.3 of the fresh delegated authority report that I prepared which is dated 13^th June 2002. Consideration was also given to whether the council was likely to grant planning permission for the retention of the caravans. Taking into account the planning history, the previous Planning Inspector’s concerns regarding the residential use of the land, and the current occupier’s (sic) situation, it was concluded that additional residential development would be contrary to planning policies and there was no planning justification to allow the caravans to remain.

12.

Consideration was also given to the impact that the continuing presence of the caravans would have on the land and in particular, the Human Rights of other residents living in the area from whom the Council receives regular complaints about the breach of planning control, particularly as some of these residents had incurred expenditure to be professionally represented in supporting the Council at the previous planning appeal. It was concluded that additional residential development would adversely affect the rights of other residents living in the area by halving the appearance of their environment.

13.

On 7^th August 2002, the Council received planning application forms relating to the stationing of four gypsy caravans, together with associated outbuildings on the land. On 7^th August 2002, a letter was sent to Alexander & Co, the occupier’s (sic) agent requesting that the application(s) forms be dated and the submission of further plans and details relating to the caravans and buildings. A reminder letter was sent on 27^th September 2002, however no further information has however been submitted, and the application has not therefore been registered or determined.

14.

Since the claimant’s (sic) application hearing on the 28^th August, they have not resided on the land until very recently. I have been advised by the adjoining landowner that the water supply to the site, which had been accessed by the claimants without authority, was disconnected at that time.

15.

On 14^th October 2002, the Council was advised that one of the caravans had been removed from the site, and this was confirmed by a site visit. The caravan that had been removed was previously occupied by Mr Hearne and his family.

16.

On 21^st November 2002 the Council was advised that a touring caravan had been brought on to the land and subsequent to that, a larger caravan. The Council has since been advised that the caravan previously occupied by Mr Mitchell has been occupied since 2^nd December 2002, however I believe that the other two caravans have remained unoccupied.”

Further evidence of the factual circumstances of this case is contained in the witness statements of John Howard Pears (“Mr Pears”) and Paul Alfred Seward (“Mr Seward”), respectively dated 11^th December and 16^th December 2002.

Mr Pears is employed as Gypsy Liaison Officer by West Sussex County Council. So far as material, his witness statement is as follows:

“2.

The West Sussex County Council owns and manages the Gypsy site known as Ryebank, Yapton Road, Middleton on Sea, West Sussex (hereinafter referred to as “the site”), which is referred to by the Occupiers as either “Ryebank” or “Yapton”. The site is home to a number of Gypsy families, and there are children on the site. Facilities provided for children include a grassed play area, and I am of the opinion that the site is suitable and safe for families to live on.

3.

On 25^th March 1995,the First Claimant and his family moved onto the site. They left the site 16^th June 2001, leaving arrears for occupation charges of £342.20. That amount remains outstanding.

4.

On 29^th August 1998 the Second Claimant and his family moved onto the site. They left the site on 12^th May 2001, leaving arrears for occupation charges of £161.80. That amount remains outstanding.

5.

I have spoken to the warden at the site and he told me that the Claimants said that they were moving to a piece of land they had bought. If they wished to be considered for accommodation on the site in the future, their application would be dealt with when the outstanding arrears are paid, and then accommodation is allocated on the basis of the priority of the applicant families.

6.

With regard to the suitability and safety of the site, I would say that there are 10 Gypsy sites in West Sussex managed by the West Sussex County Council. I am not aware that there are any problems with the suitability or security of this site, and it is noteworthy that both of the Claimants resided on the site for such a considerable length of time, if they had such fears. I am not aware of any complaints about security or safety made by the Claimants prior to these proceedings, and the reason given for leaving the site was simply that they had bought their own land to live on.

7.

I would also comment that 80% of the children from Gypsy site(s) in West Sussex attend school as opposed to a national average of 20%. Gypsy families have the full support of the Travellers Education Support Unit, who endeavours to ensure that all Gypsy children have the opportunity to attend school, and there are schools in the vicinity of every Gypsy site that children can attend.”

Mr Seward is employed by the Council as Housing Advisory Manager. So far as material his witness statement is in the following terms:

“2.

On 25^th April 2002 I visited land at North Lane, Ashington, West Sussex. I was told there were some Gypsies stationed in caravans or mobile homes without the permission of the landowner, and the landowner was about to take action to evict them. The Head of Legal Services requested me to visit them to investigate their circumstances and to offer housing advice and assistance. I attended with the Planning Enforcement Officer. There were 3 families with children living on the land. Those present on the land were not interested in talking to me, and were not forthcoming about their circumstances. As soon as they discovered who I was, they said emphatically that they did not want to make a housing application and were not interested in answering any questions. I left them my card and told them to contact me if they wanted to. The Panning Enforcement Officer gave them letters and read the contents to them.

3.

On 30^th May 2002, I again visited the site. I had been requested to do so because the circumstances had changed as the caravans had moved, and I was informed by the Head of Legal Services that planning enforcement action was being contemplated. The Gypsies recognised me, and reiterated that they were not interested in any help or advice I could give them, and that they did not want to make a housing application. The only issue they were interested in talking to me about was when the Defendant proposed to take the direct action threatened, to move them off the site.”

In a detailed written report, addressed to the Council’s Principal Planning Officer and dated 13^th June 2002, Ms Feist duly requested appropriate authorisation for the taking of direct action under section 178 of the 1990 Act in order to deal with the claimants’ breach of the enforcement notices in question.

The purpose of Ms Feist’s report and the overall approach to the relevant decision-making is made clear at the very outset, as follows:

“SUMMARY

Unauthorised development consisting of the stationing of caravans and touring caravans on the land unrelated to the use of the land for agriculture in breach of effective Enforcement Notices, and assessment as to whether it is expedient and proportionate to take direct action to secure continued compliance with the Notices.

RECOMMENDATIONS

That direct action be taken pursuant to S. 178 of the Town and Country Planning Act 1990, to remove the caravans and touring caravans stationed on the land, in order to secure continued compliance with effective Enforcement Notices.

REASONS FOR RECOMMENDATIONS

The unauthorised use of the land for the stationing of caravans and touring caravans constitutes development in the countryside not justified by agriculture or other appropriate purpose, and is detrimental to the rural character and visual amenities of the locality.

…

1.

THE PURPOSE OF THIS REPORT

To determine the most appropriate course of action to secure continued compliance with the effective Enforcement Notices issued on 22^nd March 1989 relating to the unauthorised use of the land as a caravan site, and 11^th February 1992 relating to the use of the land for the stationing of a touring caravan taking into account the circumstances of the gypsies currently in occupation.

…”

The next section of Ms Feist’s report gives details of the various material considerations that were taken into account, including the following: the relevant central government and local planning policies (paragraph 2); the planning history of the site (paragraph 3); other possible courses of action (prosecution and/or injunction) and the reasons for rejecting those options (paragraphs 5 and 6); and a detailed assessment of the effect on the claimants’ human rights (paragraph 9), which commences as follows:

“9.

HOW THE PROPOSED COURSE OF ACTION WILL RESPECT HUMAN RIGHTS

Article 8 (Right to respect for a home private and family life) … (is) relevant to the consideration of this proposal.

…

Article 8 – The Council has considered the proposed course of action in the light of the further information obtained from the occupier’s (sic) agent, Mr Weeks and other statutory bodies regarding the occupiers (sic) social, educational, housing and medical needs. …”

The remainder of paragraph 9 of Ms Feist’s report is almost entirely concerned with a detailed assessment of how the claimants’ Article 8 rights would be affected by the taking of direct action under section 178 “in the light of the further information obtained from the occupier’s agent, Mr Weeks and the other statutory bodies regarding the occupiers social, educational, housing and medical needs.” The conclusion reached in paragraph 9 of the report, so far as concerns Article 8, is expressed as follows:

“Although the taking of direct action would amount to an interference with the occupiers (sic) article 8 rights, it is considered that this interference would be in accordance with the law, pursue the legitimate aim of protecting the environment and be proportionate in the circumstances”.

Ms Feist’s report concludes as follows:

“13.

RECOMMENDATIONS

It is recommended that direct action be taken pursuant to S. 178 of the Town and Country Planning Act 1990 to remove the caravans and touring caravans stationed on the land, in order to secure continued compliance with the effective Enforcement Notices.

14.

REASONS

The unauthorised use of the land for stationing of caravans and touring caravans constitutes development in the countryside not justified by agriculture or other appropriate purpose and is detrimental to the rural character and visual amenities of the locality. The circumstances of the gypsies do not outweigh the planning harm that will be caused, or the precedent that would be set if this use were allowed to continue.

It is considered that direct action would be the most appropriate means of securing compliance with the effective Enforcement Notices. This will achieve compliance quickly, without the need for prolonged and costly court proceedings.”

On 17^th June 2002, having considered Ms Feist’s report, the Council’s Director of Planning expressly authorised the taking of direct action under section 178 of the 1990 Act.

The Issues. At the outset of his submissions on behalf of the claimants, Mr Owen Davies QC made it clear that Grounds 1 and 5 of the original grounds of challenge were no longer pursued. Stated broadly, therefore, it is the claimants’ case that the Council’s decision to take direct action pursuant to section 178 of the 1990 Act was irrational and/or Wednesbury unreasonable and, therefore, unlawful for two main reasons, namely:

I now turn to consider each of those two separate issues. However, as will become apparent from the ensuing paragraphs of this judgment, it is my opinion that my conclusions with regard to the matters that require consideration for the purposes of the Proportionality Issue also effectively deal with those matters that require consideration for the purposes of the Material Considerations Issue. In the circumstances of this case, the reasons for my decision on the Proportionality Issue have the effect also of determining the Material Considerations Issue.

The Proportionality Issue. Mr Davies commenced his submissions on this issue by referring to section 3(1) of the Human Rights Act 1998 (“the 1998 Act”), which requires (inter alia) that statutory provisions, such as section 178 of the 1990 Act, must be read and given effect in a way that is compatible with Convention rights. He also referred to section 6(1) of the 1998 Act, which provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right.”

Mr Davies submitted that, in the particular circumstances of this case, Articles 6 and 8 of the European Convention on Human Rights (“the Convention”) were both engaged. That submission was, of course, an important foundation of the first ground of challenge, namely that the Council’s decision to take direct action under section 178 of the 1990 Act, in circumstances in which the claimants’ human rights would be engaged, was irrational and/or Wednesbury unreasonable, because the exercise of that power by the Council would be disproportionate and therefore incompatible with the claimants’ Convention rights, thus rendering the Council’s action unlawful under section 6(1) of the 1998 Act. I therefore turn first to consider whether Articles 6 and 8 of the Convention are actually engaged in the circumstances of this case.

(a) Article 6 of the Convention (Right to a fair trial) provides:

“1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …”

On behalf of the Council, Mr Green immediately conceded that the claimants’ Article 8 rights would be engaged by the taking of direct action pursuant to section 178 and submitted that the evidence clearly showed that this had been recognised by the Council as a material consideration from the very outset. It was his submission that the evidence also showed that, together with all other relevant considerations, it had been fully taken into account in the course of the decision-making process that had been undertaken by the Council through its officers. He submitted that this was manifest from the evidence that is summarised above and also from the contents of Ms Feist’s detailed report of 13^th June 2002 (see above).

However, it was Mr Green’s further submission that Article 6 of the Convention was not engaged in the circumstances of this case. He pointed out that for Article 6 to be engaged the relevant decision-making process which resolves the dispute between the parties must be “directly decisive” of the civil rights and obligations in question: see Enzi v. Austria (Application no. 29268/95) at paragraph 44 and R (Aggregate Industries) v English Nature (2002) EWHC 908 (Admin) at paragraph 56. Mr Green contended that the Council’s administrative decision to take direct action in this case did not involve any determination of the claimants’ civil rights. He submitted that the relevant purported civil right or rights (which can be broadly summarised as the right of each claimant to use his land for the placement of his caravans) had already been determined in Article 6 terms by procedures which were Article 6 compliant and which had resulted in the valid and effective enforcement notices in question: see paragraph 4 above.

Mr Green emphasised that the validity of each enforcement notice cannot now be questioned (see section 285 (1) of the 1990 Act), that each notice binds the land permanently and has removed or restricted the right of any owner and/or occupier of the land to use it for the placement of caravans until such time and only to the extent that either of the notices is withdrawn or planning permission is granted (see sections 173A and 180 (1) of the 1990 Act) and that, therefore, each claimant’s use of the land for the placing of his caravans was and continues to be a contravention of the notices in question and an offence (see sections 179 and 181(1) and (2) of the 1990 Act, quoted above).

In support of that submission, Mr Green referred to and relied upon the decision of the Court of Appeal in St Brice v. Southwark London Borough Council (2002) 1 WLR 1537, in which it was held that the issue of a warrant of possession, after an order for possession has been made, did not involve any determination of the tenant’s civil rights and thus did not itself engage Article 6: see the judgment of Chadwick LJ, in which he said this at paragraph 32:

“32.

The issue of a warrant of possession in the County Court is an administrative act; the purpose of which is to enable there to be carried into effect the judicial determination, which has been already expressed in the order for possession in aid of which the warrant is issued. The issue of the warrant involves no determination of the former tenant’s civil rights and obligations. His rights and obligations as a tenant have already been determined at a public hearing at the time when the order for possession is made. His right – as a former tenant who has remained in occupation following determination of the tenancy – to apply for an order under section 85(2) of the Housing Act 1985 is unaffected by the issue of the warrant.”

It was Mr Green’s submission that the position in the present case was, in all essential respects, the same as in St Brice v Southwark (supra) and that the same principles should apply. He submitted that the Council’s decision to take direct action under section 178 was not directly decisive of any of the claimants’ relevant civil rights, because the prohibition on the right to use the land for the stationing of caravans had already been established by the relevant enforcement notices, which had involved procedures that were Article 6 compliant; i.e. each of the enforcement notices had been subject to a right of appeal the overall procedure for which, in combination with the High Court’s powers of review, is Article 6 compliant: see paragraphs 44 to 48 of the judgment of the European Court of Human Rights in Bryan –v- United Kingdom (1995) 21 EHRR 342 and paragraphs 106 to 129 of the speech of Lord Hoffman in R (Alconbury Limited and others) v Secretary of State for the Environment, Transport and the Regions (2001) 2 WLR 1389: see also paragraph 40 of the judgment of Law LJ in Runa Begum v TowerHamlets LBC (2002) 2 All ER 668. Mr Green underlined the point by emphasising that the unlawfulness of the claimants’ caravans being stationed on the site was precisely the same after the Council’s decision to take direct action as it had been before that decision was taken.

In my view, Mr Green’s submissions on this aspect of the matter are correct. For the reasons put forward by Mr Green and summarised above, I am satisfied that the Council’s decision to take direct action pursuant to section 178 of the 1990 Act was an administrative act that did not involve any Article 6 determination of the claimants’ relevant civil rights. At all material times and by reason of the terms of the valid, effective and Article 6 compliant enforcement notices in question, the claimants did not have any right to bring and station their caravans on the site. Moreover, the right that each claimant did and does have, namely the right to apply for an appropriate planning permission to station the caravans on the site, has not been affected by the Council’s decision to take direct action. Accordingly and for those reasons, I am satisfied that Article 6 of the Convention was not and is not engaged by the Council’s decision to take direct action and I reject Mr Davies’ submissions to the contrary effect.

However, as I have already indicated, it is common ground that the Council’s decision to take direct action to remove the claimants’ caravans from the site does engage each claimant’s Article 8 rights to respect for his family life and home. Furthermore, Mr Green did not dispute the proposition that the taking of such direct action by the Council would amount to an unlawful interference with each claimant’s Article 8 rights, unless justified under paragraph 2 of that Article (see above): see also section 6(1) of the 1998 Act. As it seems to me, therefore, the central question on this issue is whether, in all the circumstances of this case, the Council’s decision to exercise its power to take direct action under section 178 case was a decision to use a disproportionate remedy which would, therefore, constitute an unjustified and unlawful interference with each claimant’s Article 8 rights.

Mr Davies stressed that in cases (such as the present) where human rights are or will be engaged by the taking of direct action and in view of the alternative powers that are available to prosecute and/or to seek an injunction (in both of which processes the courts would be involved), a local planning authority should only exercise its power under section 178 to take direct action to deal with the breach of an enforcement notice as a last resort, because of the drastic and draconian nature of such a remedy. Mr Davies submitted that, in such circumstances, direct action under section 178 should be regarded, in effect, as an ancillary power to the powers to prosecute or to seek an injunction against the offender. It was his submission that any other approach would almost inevitably result in a disproportionate interference with the human rights in question, as in the present case.

Mr Davies suggested that such an approach was entirely in keeping with the views expressed in the report written by Robert Carnworth QC (as he then was), entitled Enforcing Planning Control, that resulted in the various amendments to the 1990 Act that were introduced by the Planning and Compensation Act 1991 (including the amended section 178): see paragraph 11.2 of that report, which is in the following terms:

“11.2

Although this (i.e. the existing un-amended section 178) will never be more than a last resort power, it could be strengthened by making it available for any steps required to be carried out under an enforcement notice. At present it does not extend to … the discontinuance of a use. I do not see any real need for these exclusions. The remedy of judicial review is available to prevent abuse. …”

Mr Davies also referred to and relied upon the following editorial comment on section 178 (1) of the 1990 Act, that is to be found in the relevant volume of Current Law Statutes:

“While there are clearly practical difficulties over using this power to discontinue a use, where an injunction may be considered more appropriate, it is clear that this power can be used to remedy associated matters such as access, fencing, water supply, etc.”

It was also Mr Davies’ contention that such an approach to the exercise of the power to take direct action is entirely in line with relevant ministerial guidance, such as that to be found in Circular 18/94, which states (inter alia):

“9.

The Secretary of State continues to consider that local authorities should not use their powers to evict Gypsies needlessly. He considers that local authorities should use their powers in a humane and compassionate way, taking account of the rights and needs of the Gypsies concerned, the owners of the land in question, and the wider community whose lives may be affected by the situation.”

So far as concerns both this issue and the Material Considerations issue, Mr Davies submitted that the importance of the coming into force of the 1998 Act could not be exaggerated. He emphasised how important it was that public authorities are now obliged to act in a way that is compatible with Convention rights (see section 6(1) of the 1998 Act, quoted above). It was Mr Davies’ submission that in a case such as the present, in which human rights are engaged, a public authority’s approach to the exercise of its relevant powers should ordinarily be in accordance with the principles expressed by the Court of Appeal in South Bucks District Council v Porter (2002) 1 All ER 425, a case in which the proper exercise of the court’s power to grant an injunction under section 187B of the 1990 Act was considered in the light of the 1998 Act. In particular, Mr Davies referred to and relied upon the following passage in the judgment of Simon Brown LJ:

“38.

I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s. 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, “entirely foreclosed” at the injunction stage. Questions of the family’s health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary planning permission.

39.

Relevant too will be the local authority’s decision under s 187B(1) to seek injunctive relief. They, after all, are the democratically-elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the art 8(2) questions as to necessity and proportionality.

40.

Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.

41.

True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 circular: the court’s discretion is absolute and injunctive relief is unlikely unless properly thought to be “commensurate” – in today’s language, proportionate. The Hambleton approach seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the 1998 Act, to my mind it cannot be thought consistent with the court’s duty under s 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gipsy’s private life and home and the retention of his ethnic identity – are at stake.

42.

I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge.”

Relying on Simon Brown LJ’s statements of principle in South Banks v Porter (supra), Mr Davies stressed how difficult and complex it can be for a public authority to strike the proper balance between competing interests that must be struck, if the exercise of the authority’s powers is to be lawful when human rights are engaged. In this regard, he pointed out that a local authority’s decision to exercise its powers under section 178 of the 1990 Act was not subject to any external assessment: e.g. there is no requirement in section 178 that an independent tribunal (such as the court) should (i) strike the necessary balance between the relevant competing interests (as would be the case if the Council were to seek an injunction pursuant to section 187B) or (ii) be satisfied as to the appropriateness and gravity of any sanctions to be imposed on the claimants (as would be the case if they were to be prosecuted for offences under section 179).

Mr Davies also submitted that the availability of judicial review did not, of itself, render the Council’s exercise of its power to take direct action under section 178 proportionate. This, he suggested, was because the court’s supervisory powers of judicial review do not provide sufficient or adequate protection or remedy in such cases, because: (i) the burden of proof is on the applicant, (ii) the applicant may well be ignorant of the procedure adopted and the evidence upon the which the action has been taken, (iii) the applicant will not necessarily be aware of the local authority’s reasons for taking direct action, as opposed to some other course, (iv) there is no requirement that the local authority give advance warning, no requirement to give an opportunity for the decision to be challenged and no requirement to give reasons for the decision, (v) the speed with which the local authority act may leave no time for the applicant to challenge the lawfulness of the direct action before it is actually carried into effect and (vi) any subsequent vindication or the award of damages would be an inadequate remedy for the disruption of family life and the loss and/or removal of a home.

Mr Davies submitted that it cannot be right that the safeguards for the human rights of persons who will be affected by the action to be taken to deal with a breach of planning control will be less, if the planning authority in question chooses to exercise its powers of direct action under section 178 of the 1990 Act, than would be the case if the authority were to seek an injunction from the court pursuant to section 187B of the same Act. It was, therefore, his submission that, if direct action is to be taken under section 178, in a case (such as the present) in which Article 8 rights are engaged, the following minimum standards must be met, in order for the relevant decision-making to be lawful:

However, despite the attractive and persuasive fashion in which Mr Davies put forward his submissions, I find myself in complete agreement with Mr Green’s submission that there is no justification for concluding that the power to deal with the breach of an enforcement notice by taking direct action under section 178 is ancillary to such other powers as are available to a local authority to deal with that situation. As Mr Green pointed out, although section 178 confers a general discretion to take direct action, it does so only in certain, narrowly defined circumstances. He rightly stressed that section 178 does not give the local authority a general power to go on to land in order to deal with a breach of planning control. He emphasised that, although the discretion to take direct action under section 178 is not qualified by considerations of necessity, it can only be taken to remedy a relevant failure to comply with a valid and effective enforcement notice and this can only occur after the time for compliance with the notice has expired and the appeal process relating to it has been completed (all of which conditions are satisfied in the present case): see sections 175(4) and 178(1) above. Once that position has been reached, the breach of planning control that resulted in the enforcement notice in question is conclusively determined (see section 285(1)). Only then is the local authority empowered to take direct action under section 178. Furthermore, subject to the statutory defences, the breach of the enforcement notice is a criminal offence under section 179. However, as Mr Green observed, the power to seek an injunction can arise in a very much wider set of circumstances and there is no necessity for there to be an enforcement notice in existence; e.g. an injunction can be sought to restrain an actual or threatened breach of planning control, allegations that may well involve factual issues that are disputed by the defendant to such proceedings.

I agree with Mr Green’s submissions on this aspect of the matter. I can see no reason that justifies the conclusion that a planning authority should, in effect, be compelled to take proceedings for an injunction, before resorting to its power to take direct action, if the circumstances of the case satisfy the requirements of section 178 of the 1990 Act. I am satisfied that, in such circumstances, it is clearly open to the local authority to decide to take direct action rather than to seek an injunction. In my view, there is nothing in either the 1990 Act, or the 1998 Act or the Convention that warrants a different conclusion and I reject Mr Davies’ submissions to the contrary effect.

I have set out my understanding of Mr Davies’ submissions at some length because, as it seems to me, they are really an attempt to prescribe an exhaustive list of specific conditions that must be satisfied in order to render lawful the taking of direct action under section 178 of the 1990 Act when human rights are engaged. However, none of those conditions is to be found in the actual terms of the section itself.

In my opinion, such a formula-type approach to section 178 is neither necessary nor appropriate. In my view, each case must be considered on its own facts. In the present case, as Mr Green readily acknowledged (see paragraph 26 of his written skeleton argument dated 25^th November 2002) and the Council clearly recognised (see Ms Feist’s report of 13^th June 2002), it is for the Council to demonstrate that the proposed interference with the claimants’ Article 8 rights is proportionate and, thus, justified under the terms of Article 8(2). To this end, to adapt the words of Simon Brown LJ in paragraph 41 of his judgment in South Bucks DC v Porter (see above), “proportionality requires not only that (the direct action) be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gipsy’s private life and home and the retention of his ethnic identity – are at stake”.

Applying these principles to the present case, Mr Green submitted that it was clear from the evidence and from the contents of Ms Feist’s report of 13^th June 2002 that the Council, through its officers, had carefully considered all the relevant and material matters and had reasonably decided that the exercise of its power to take direct action would be proportionate in all the circumstances of the case. He submitted that the proposed exercise of the power to take direct action was in accordance with the law (i.e. the conditions of section 178 were satisfied) and that the Council had clearly reached the conclusion that direct action was proportionate in this case, because it was the appropriate and necessary means of attaining the legitimate public interest objective of safeguarding the environment. Mr Green suggested that it was also clear from all the evidence that the Council, through its officers, had taken a great deal of care to strike the necessary balance between the relevant competing interests and had reasonably concluded that the taking of direct action in the present case would not impose an excessive burden on either claimant’s private life and home. Accordingly, he submitted that the Council’s decision that direct action under section 178 would be proportionate and, therefore, justified under Article 8(2) of the Convention was entirely rational.

In my opinion Mr Green’s submissions are correct. It is clear from the evidence and from Ms Feist’s report that the Council was fully aware that direct action under section 178 would be incompatible with the claimants’ Article 8 rights and unlawful, unless proportionate and justified under Article 8(2). I am satisfied that the evidence shows that the Council, through its officers, carefully took into account all relevant and material matters that required its consideration when striking the balance between the relevant competing interests and deciding whether the taking of direct action under section 178 would be proportionate and, therefore, justified under Article 8(2). As is clearly demonstrated by Ms Feist’s report of 13^th June, having carefully considered all the relevant and material matters, the Council came to the conclusion that direct action was so justified in the circumstances of this case and, therefore, would be lawful. In my view, that conclusion was clearly one that was open to the Council on the material that its officers considered. I am satisfied that it is a conclusion that cannot possibly be stigmatised as irrational or Wednesbury unreasonable and I reject Mr Davies’ submissions to the contrary effect. Accordingly, for those reasons, this first ground of challenge fails.

The Material Considerations Issue. As I have already indicated when dealing with the Proportionality Issue, in order to decide whether direct action under section 178 would be compatible with the claimants’ Article 8 rights, it was necessary for the Council to consider whether such action on its part would be proportionate. In this case, that involved striking an appropriate balance between the public interest objective of safeguarding the environment on the one hand and each claimant’s private interest in his family life and home on the other. For the reasons given in the previous paragraphs, I have come to the firm conclusion that the Council’s decision, that direct action under section 178 would be proportionate in all the circumstances of this case, was entirely reasonable. In reaching that conclusion and for the reasons stated, I was satisfied that the evidence clearly shows (inter alia) that, in its decision-making, the Council did take into account fully all the relevant and material circumstances relating to the claimants and their families. For that reason, it therefore follows that this second ground of challenge must also fail.

Conclusion. For the reasons given above, I am satisfied that this application must therefore be and is hereby dismissed.