Lee, R (on the application of) v Nuneaton & Bedworth Borough Council

MR JUSTICE COLLINS: The claimants in this case are gypsies. In April 2001 they entered upon a site, Wolvey Road, Bulkington, and there set up a number of their caravans on various pitches. The site itself had been, I think, purchased by one of their number and the arrangement was that the various pitches on the site, which numbered some 30 or thereabouts, would be occupied by individual families or rather individual caravans. The site in question is in the Green Belt and no planning permission was obtained or indeed sought for the development in question.

Very shortly after the occupation of the site the local authority, the defendants, applied for an injunction under section 187B of the Town and Country Planning Act 1990. The application came before a circuit judge, HHJ McKenna, on 3rd May and he ordered that there should be no further development in breach of planning control, the occupation of the site should be ended by 14th June, and the site itself reinstated by 21st June.

Shortly thereafter 21 separate planning applications were lodged by the various plot holders. Those applications were refused by the defendant authority on 20th July 2001 and on 24th July enforcement notices were issued requiring the use of the site as a gypsy caravan site to cease within three months of the notice.

There was an appeal against the refusals of planning permission and the enforcement notice, and in March 2002 there was a public inquiry. Prior to that the orders which had been made by HHJ McKenna had been varied by an order of HHJ Rundell in January 2002 so they were not to include an order requiring the ending of residential caravan use of the site. The reason for that change was the decision of the Court of Appeal in South Buckinghamshire DC v Porter, and the recognition that the specific rights of gypsies had not properly been taken into account in the original decision which had been made by HHJ McKenna. He could not be criticised for that because as the law then stood he reached a decision which was justifiable but the Court of Appeal decision in Porter changed the position.

After the inquiry the inspector refused the permissions and upheld the enforcement notice but extended the time for compliance from three to nine months, that is to say by 27th March 2003.

The inspector was concerned with -- because the matter was raised before him -- the difficulties of gypsies in finding sites to place their caravans because there were no such sites in the local authority area, and the policy which was reflected in the proposed plan, which was at that stage under consideration, was not site-specific. Indeed one of the problems in this case has been the inability of the local authority to identify sites which are either available or satisfactory to enable the claimants to find somewhere to place their caravans.

This is partly due to the well-known national problem that Parliament, having repealed the Caravan Sites Act 1961, has not required local authorities to provide sites for gypsy encampments and it is well known that there tends to be local opposition to the provision of such sites. So there are real difficulties in finding places where they can be put, and if they are put in the countryside away from other habitations or in Green Belt land, there are obvious breaches of planning policies. Again there tend to be, whether or not they are justified, complaints about untidiness and so on which lead to further difficulties. I make it clear that I am not aware of any suggestions of that sort in connection with the site with which I am concerned in this case. It is merely that it is a site which does not have planning permission, is in the Green Belt, and a decision has been made that planning permission should not be granted. That is the position that unfortunately has to be faced by the claimants.

The decision of the inspector was taken to appeal and came before Forbes J in December 2002. He decided that the appeal should be dismissed, and again before him the issues were raised which are regularly raised in cases involving gypsies of the real problems that are faced in finding sites and the importance, which I understand and with which I entirely sympathise, of ensuring that their way of life is properly respected and if possible is catered for in the various areas of the country where they would wish to settle and regard as their permanent base.

I put it that way because, being travellers, obviously they travel and they spend time away from a particular area but they do in most cases and certainly as I understand it in this case, regard this site as their home base as it were, and the place to which they return regularly during the year whether or not they choose to travel, perhaps to work, perhaps for other purposes at other times, and no doubt their children attend local schools at or near this particular site. So, as I said, it is the site which they regard as their home site.

The enforcement notice had to be complied with by 27th March 2003; it was not. On 1st April the local authority resolved to apply to the court for an injunction. I have been referred to the report to the committee and to the resolutions made by the committee which deal with the various decisions which are relevant in this case.

The report to the committee in April set out the history as I have indicated and referred to the various alternative courses of action that could be taken. There, in reference to the possibility of prosecution which would carry a fine but could not result in an order that the offender leave the site, the provisions of section 178 of the Town and Country Planning Act 1990 were referred to and that enabled the local planning authority to enter the land and take steps required by an enforcement notice. In this case that would have involved the removal of the caravans and other items from the land, and the expense of doing so and reinstating the land to its original condition could under the Act be recovered from the claimants.

But it was pointed out that there were disadvantages. The removal of the caravans was likely to lead to them being placed illegally throughout the surrounding area. Bailiffs would have to be instructed and there would be protests and difficulties and police involvement and, no doubt, widespread media interest. There was then the possibility of the renewal of an application for an injunction under section 187B. HHJ Rundell had indicated in January 2002 that the matter might well be expected to be referred back to him when the results of the planning appeals were known. That was the suggested route that should be used by the Council following the advice of counsel.

The committee was referred to the judgment of the Court of Appeal in South Buckinghamshire DC v Porter and to the observations of Simon Brown LJ in these terms:

There was then reference to the possibility of alternative sites, views of local residents which were hostile, and there followed a recommendation that an application for injunctive relief should be pursued. That is indeed what was decided.

The matter came before HHJ Rundell on 31st July 2003. The arguments were deployed before him by Mr Hickmet, no doubt very persuasively as he has made his submissions before me, but they failed. The learned judge decided that notwithstanding the real problems which were faced by the claimants, injunctive relief should be granted. But he had to consider the question as to when that relief should bite. He decided that it was just and proportionate to make the order. He did consider what had been done by the claimants. It was noted by him that only one of the 70 or so respondents before him had sought to put in any evidence and to refer to any powerful personal circumstances which pointed towards that particular respondent being permitted to remain on the site. The absence of any such evidence led the learned judge to conclude that there were no such particular powerful circumstances.

He then went on in paragraph 23 of his judgment to say this:

H13 was the policy contained in one of the relevant plans, I imagine the local plan.

In paragraph 27 he asks himself the question whether it was just and proportionate to grant an injunction. He indicated that he had had regard to the guidance provided by the Court of Appeal and, by the time the matter came before him, the House of Lords in the South Buckingham case, and he referred to observations of Lord Scott in that case in which he said:

HHJ Rundell continued:

He then indicated that it would not be reasonable in his view to require that they leave within 28 days. He was urged by the respondents to give them until Easter of this year but in the end he decided that the orders should be made that they leave by 31 December 2003.

Following that decision of HHJ Rundell, the Council had to consider what action they should take if the learned judge's order was not obeyed. It is not at all surprising that the Council should have had concern about that because the previous injunction had not been obeyed, nor had the enforcement notice which had been upheld by the inspector and by a judge of this court.

So it was that in August 2003 there was a further meeting of the relevant committee of the Council. The report to that committee had to consider the question of what enforcement action should be taken on the assumption that the site was not vacated and in that report the various alternatives were set out. The point was made that even if the County Court injunction was not obeyed, the remedy was proceedings for committal, but of course committal would not achieve the result of clearing the site which was what the local authority understandably wanted to occur. In the report the officer said this:

Mr Hickmet has submitted that that shows that the Council were concerned that if they did go back before HHJ Rundell he might decide to discharge the injunction or certainly to grant more time. It does not seem to me that that can conceivably be read into the paragraph that I have just cited. In fact it does not appear that it was the applications to commit which resulted in the discharge of the injunctions. Rather it was the recognition that the law had been changed by the decision of the Court of Appeal in the Porter case and that this had not been properly taken into account by HHJ McKenna.

In any event the other option referred to was the possibility of making use of section 178 of the 1990 Act. It was said that that was not recommended earlier because it was thought that the decision to use section 178 would probably have resulted in an application being made in the High Court for a judicial review. Now that the County Court had considered the situation in full, such a challenge was unlikely. Therefore it was suggested that section 178 should be further considered. And the point was made that if that course of action were decided to be appropriate, arrangements would have to be made with bailiffs and with the police to ensure that the enforcement action could be taken.

The expectation that there would not be judicial review has of course not been borne out but one can well understand the approach of the reporting officer and of the Council because the matters that had to be taken into account in considering the special position of gypsies had been taken into account by HHJ Rundell. His decision had not been appealed and accordingly it was improbable, unless there was a change of circumstance, that any of those matters could be raised again before another judge. Indeed, although Mr Hickmet has to some extent endeavoured to repeat them, it is clear that those matters cannot be re-argued and, subject to one very important matter which I will come to in a moment, there has been since no material change of circumstance.

So the decision was made in August that members would note HHJ Rundell's decision of 31st July 2003 and that officers should be instructed to discuss with the police and other agencies and organisations the use of section 178, and that there should be a report to a future meeting with recommendations as to any necessary future action.

There was a further report in early November 2003 following up the August decision in which it was indicated that various meetings had been held, consideration had been given to the cost of the action, but also there was spelt out the effect of the homelessness legislation because it was recognised that by virtue of section 175 of the 1996 Housing Act a person would be regarded as homeless if he had accommodation which consisted of a moveable structure, vehicle or vessel designed or adapted for human habitation but there was no place where he was entitled or permitted both to place and to reside in it. Reference was made to the relevant homelessness code guidance which referred specifically to gypsies in which it was stated that if no pitch was available to enable resumption of occupation of a moveable home, it was open to the housing authority to discharge its homelessness obligations by arranging for some other form of suitable accommodation to be made available. In paragraph 3.4 of the report this was stated:

It was then said that further evidence of the requirements of the persons on site would be sought and the education consortium would be advised of the situation so that where necessary alternative arrangements could be made for the education of children on the site. That, as it seems to me, must have put up a marker that it might be necessary if, even at a very late stage, an application in relation to homelessness was made, further inquiries might be needed before any final action was taken. Following that, a letter was sent to the occupants dated 12th November 2003 indicating that they would have to leave by the end of the year. In fact the date taken was 3rd January 2004, and it was stated in that letter as follows:

Then the warning is given that the land would otherwise be entered and that immediate action to leave should be taken. It said:

Nothing was heard from all but two of the families and I am told that those two are no longer on site. There followed a letter on 17th December 2003 in which it was stated the Council would enter on Monday 12th January and remove any caravans or other items then remaining. Mr Hickmet has submitted that in the light of that and the decisions that I have already referred to the Council had already decided that it was going to take action and that the formal decision which was made on 6th January should be regarded really as no more than a rubber stamp of what had already previously been determined.

There was indeed a meeting on 6th January. In that meeting it was resolved that the decision to remove should be put into effect on 12th January. As it happens, the attempted removal was not effective. There followed this judicial review application and obviously matters were put on hold. In fact Beatson J gave permission on 15th January and the terms of the order made by Beatson J so far as relevant were that permission be granted:

I am bound to say that reading that it seems to me that the general point made by Mr Hickmet in reliance upon the duties under the Housing Act was open to be argued as being part and parcel of the duties on public authorities in respect of gypsies, but I was informed by Mr Rumney that Beatson J had in fact rejected the claim based on obligations under the Housing Act but the reason why he had rejected those claims was really a question of timing. I have referred to the failure of any bar two of the occupants to contact the Council following the letter of November 2003, which I should add carried with it the Council's standard booklet on the provision of Council housing and housing accommodation generally. But on 2nd January there was a letter which was received the day before the meeting of the Council. The claimants' solicitor wrote as follows as far as relevant:

There was then an assertion made that the Council had failed to comply with HHJ Rundell's judgment or to fulfil its obligations. It had been suggested that it had an obligation to provide or identify alternative sites.

The meeting of the Council was attended by a housing officer and we find what Mr Inman says about that letter of 2nd January was this:

It is said that at the meeting the question of any welfare considerations were raised but there were none that were new which fell to be taken into account. So the decision was upheld.

Since January of this year there have been some discussions with the claimants or some of them. I have no doubt that the claimants have been advised that they have to face up to the reality that the time is coming when this site will no longer be available to them. They can only as it were hold out so long and obviously they want to have somewhere to which they can transfer their caravan before they are moved out of this particular site.

The present situation is set out in a letter of 9th April 2004 where reference is made to the inquiries which have been made by the Council of those who have specifically spoken to them and the net result is that there is it seems only one family who has indicated that they would in no circumstances accept traditional housing although indeed the letter does not even indicate that it goes as far as that.

But of course if there is nowhere that the authority can find having made all the proper necessary inquiries, other than temporary accommodation in what is described as traditional housing, then it may well in the particular case not be unreasonable for the authority to require that the relevant gypsy does take up that accommodation albeit for a temporary period. All hangs upon the necessary inquiries being made. Certain it is that there is no obligation in general terms for the Council to provide an alternative site before enforcing the planning law to remove caravans from a site which is unlawfully in existence in breach of the planning control and that is made plain by a number of decisions culminating in that of Newman J in Price to which I have already referred.

The main point which seems to have appealed to Beatson J, and has been raised by Mr Hickmet, is that the Council were not entitled to use section 178, having already chosen to go to the County Court under section 187B and HHJ Rundell having reserved the matter to himself. Mr Hickmet submits that if the matter had gone back to HHJ Rundell he would have been able to make submissions and indeed to call evidence and to require evidence to be called by the Council in order to show (a) that the Council had not done all it ought to have done in order to identify alternative sites and (b) that it was in all the circumstances unreasonable to expect the individual claimants to accept temporary accommodation in traditional housing and that they needed in all the circumstances to have somewhere to place their caravan before they should be moved out of this particular site. Therefore it should not be regarded as a culpable breach of the injunction. Section 178 does not require any court order and enables the administrative action to be taken, but that action is subject to judicial review. Judicial review has been taken and there are before me the arguments that could have been raised before HHJ Rundell, and I have to take account of precisely the same matters in deciding whether in all the circumstances it is appropriate and proper that the action under section 178 should go ahead. So the protection is equally there, whether under section 178 and judicial review or the decision of the circuit judge.

It seems to me that the Council was anxious to ensure that the site was cleared and there were obvious disadvantages in seeking committal. The first disadvantage is that that will not achieve clearance of the site. The second is that it will serve no useful purpose to send the fathers -- presumably it would be the fathers -- to prison. It would hardly benefit the families, it would do no good for the children and it would almost certainly impose burdens upon the Social Services, and again it would not achieve what Council wanted to achieve, which is the clearing of this particular site.

One can understand why they decided originally to go for an injunction. They took the view that immediate action was needed and thereafter that action through the County Court would achieve that the matters that had to be considered in deciding on enforcement were considered and were considered by a judge. Indeed, following the Porter case, the learned judge, HHJ Rundell quite clearly could not have made, and did not make, the order without considering whether he would require it to be enforced and to take appropriate action.

Mr Hickmet has further submitted that to use section 178 would be to breach Article 6 of the ECHR because the claimants were not given a hearing before an independent tribunal. That submission is bad. The fact is that the enforcement action under section 178 followed a full consideration before two independent tribunals, the first being the inspector who decides on the facts, and the second being the administrative court in the form of the appeal from that decision. There was no question but that article 6 does not and cannot apply in that situation.

As far as I can see there is no bar whatever to prevent the Council from acting as they have in using section 178 notwithstanding that they had decided originally decided to use section 187B. There may be circumstances where if there is no good reason shown for taking particular action it can be said that to try to ride two horses may be unlawful, but the facts of this case do not begin to show any such possibility of illegality. Accordingly there is nothing in my view to support the point.

The Council very properly indicated in November that they would accept any applications made in relation to homelessness and would seek to deal with it. True it is that they did not in terms in the letter indicate that they were prepared to consider the particular position of the claimants as gypsies and a possible aversion to traditional housing. Nonetheless they were aware of that and had applications been made would have had to have considered them on that basis. If they had not they were aware that those decisions would have been likely to be quashed. If there had been no indication of any particular applications before the meeting of 6th January I would have had no hesitation whatever in saying that the decision made then was clearly lawful and could have gone ahead.

But I am concerned that there was, albeit very much at the last minute, an application in relation to homelessness. It seems to me that that was a highly relevant consideration which ought specifically to have been taken into account by the committee in deciding when the removal of the site should take place. It seems to me that because they knew that there was nowhere else that could be made available to station any caravan and they knew, because they had been told in a letter, of the possibility that there may be an aversion, a perfectly proper aversion, to living in traditional accommodation, that is a matter which should have made them appreciate that there was a need possibly to defer the action which was proposed for 12th January and it seems to me that they did not properly take that into account.

Things have moved on since then and there has quite clearly been consideration of those aspects. It may well be in light of the information that I have that the Council can now say they have made all reasonable inquiries and they have taken all reasonable steps to see what can be made available, and that it is not a case where there can be said to be such an aversion to bricks and mortar as to require that some sort of temporary accommodation cannot be appropriately offered. Of course the duty under the Housing Act is a duty which has to be considered and applied reasonably. If, doing all they reasonably can, the authority is unable to find any alternative, it may be forced to require either that the individual go further afield or that he accept, albeit on a temporary basis and as short as possible, provisional accommodation.

I do not have full information as to the precise nature of the up-to-date situation. What I do say is that although it may well be that the decision in January ought to have been deferred, as things now stand the Council is clearly entitled to make use of section 178 and I have no doubt that the matter will go back now for consideration as to when that enforcement should be put into effect, but that there will be continuing consideration, insofar as there has not yet been, of the particular position of individual families. There must be co-operation from those families. Any lack of co-operation will entitle the authority to act on their own terms as it were, of course taking account of such material as they have. But it is vital that the co-operation exists and I can only note that there appears to have been a degree of a lack of it in the past.

I am not seeking to lay blame on anyone in particular and I can understand perhaps why the view was taken that they wanted to stand together and they wanted the matter to be able to be pursued and delayed perhaps as long as possible. But the time has now come when this enforcement action can in my view be put into effect and put into effect relatively quickly.

I leave it to the sense of both sides to try to ensure that the site is vacated as speedily but as peacefully as possible. The Council has given a reasonable time. The claimants must realise that the end of the road has come for them and as I say that arrangements must be made as soon as reasonably possible.

It may be, and I note this, that the children's schooling will be a relevant factor if it is not possible to find local temporary accommodation. That is a matter that will no doubt be taken into account in the decision as to timing. We have now reached the summer term and will reach the end relatively shortly. That no doubt will be a factor. It is not for me to decide. I can only clear the way as it were because as a matter of law I am afraid I take the view that there is no objection to the use of section 178 and that the matters which affect the consideration have already been dealt with in detail by both Forbes J and by HHJ Rundell, and there is nothing new, subject to the homeless matter which I have referred to, which can now apply to the claimants.

It seems to me that the appropriate order in those circumstances, and I will hear counsel of course on this, would be no order. The judgment speaks for itself. If a declaration is required and the use of section 178 is lawful in the circumstances, I am happy to make that declaration. I do not think it is appropriate to go further than that. That of course is a declaration which would be a declaration on behalf of the defendants rather than claimants.

MR HICKMET: I understand my Lord to be saying that the site must be vacated as speedily as possible.

MR JUSTICE COLLINS: Consistent of course with the obligations to make the necessary inquiries and to apply the necessary principles under the housing act.

MR HICKMET: As I understand that, such an application under the Housing Act requires a proper investigation.

MR JUSTICE COLLINS: Well, there has been, as I understand it, an investigation.

MR HICKMET: An offer then, in which my Lord allow us time to appeal to the County Court.

MR JUSTICE COLLINS: I am sorry, it seems to me that the Housing Act duties are not something which can prevail against the planning obligations. It may be that there is a right of appeal, but that is not a right which carries with it the right to remain where you are until the appeal is heard.

MR HICKMET: I raise these matters so that we are clear.

MR JUSTICE COLLINS: The Council is well aware of the difficulties under the Housing Act. They know that and there are umpteen authorities on every obligation of the Council under that act. As I say, what they do not include is an obligation to allow someone to remain unlawfully on land pending a consideration of what is appropriate. If an offer is made of accommodation in circumstances where it is reasonably decided that there is no rooted aversion to bricks and mortar in temporary accommodation, that must be taken. That is not something which can prevent the clearance of the site under section 178.

MR HICKMET: Would I be right in interpreting my Lord's judgment as providing that it allows for the investigation and an offer, or not as the case may be?

MR JUSTICE COLLINS: I think that all I have said and all I can say is that the Council must approach the matter in a reasonable fashion and have regard to its obligations under the Housing Act. I am taking account of the fact that, as I have indicated, they are entitled to make use of section 178. These people are unlawfully on the land. But it is obvious that if there is nowhere else for them to go, that is a factor which the Council then have to take into account, at least in the short term.

I am not suggesting, and I hope the Council would not suggest, that they go immediately back and try to throw them off next week. That is not something which would be reasonable. I suspect if they did try that you would come running back to me and you would probably persuade me to stop them doing it. Of course not. The Council are well aware of the difficulties but this has gone on long enough.

That is why I say it should be done speedily but obviously they have to bear in mind their obligations under the Housing Act. They are in a very difficult position and they know that. It is not easy, but this has been going on long enough. Your people ought to have been preparing themselves for this result which was inevitable in due course some time ago, so I do not, I am afraid, have an enormous amount of sympathy if there has been any failure to take any steps.

MR HICKMET: I am sure that helps me to advise my clients as to what --

MR JUSTICE COLLINS: I know the difficulties but I am afraid whatever the difficulties and whether the problems that gypsies have, they cannot solve them by self-help in breach of the planning laws. It may provide a temporary base but in the end they will be defeated because they cannot simply go ahead and break the law.

MR RUMNEY: I am instructed to apply for costs. We are a respondent. The substantial issue in this case, at least as it appeared before today, was what you at one time called the technical issue and that has been determined in the local authority's favour.

MR JUSTICE COLLINS: On the other hand I have indicated that I think you were in error not to consider, and probably in fact to defer, the action for at least a short time to enable the necessary inquiries to be made.

MR HICKMET: I was not going to make an application for costs unless my learned friend --

MR JUSTICE COLLINS: I think, as I said, the appropriate order in this case is no. Are you privately?

MR HICKMET: Privately.

MR JUSTICE COLLINS: I think the appropriate order in those circumstances is no order.