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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Wilson, R (on the application of) v Wychavon District Council & Anor  EWCA Civ 52 (06 February 2007)
Cite as:  2 WLR 798,  QB 801,  EWCA Civ 52
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Crane
Case No: CO/2845/2004
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE RICHARDS
| The Queen (on the application of Claire Wilson)
|- and -
|(1) Wychavon District Council
(2) The Secretary of State for Communities and Local Government
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Philip Sales QC and Nathalie Lieven QC (instructed by The Treasury Solicitor) for the Second Respondent
The First Respondent did not appear and was not represented
Crown Copyright ©
Lord Justice Richards :
The place of stop notices within the enforcement regime
"A stop notice shall not prohibit –
(a) the use of any building as a dwellinghouse, or
(b) the use of land as the site for a caravan occupied by any person as his only or main residence (and for this purpose 'caravan' has the same meaning as it has for the purposes of Part I of the Caravan Sites and Control of Development Act 1960) …."
It is a convenient shorthand to refer to the exemption in (b) as an exemption for residential caravans.
"9.10 It has also been suggested by a number of submissions that section 90(2)(b), which provides an exemption for residential caravans, should be repealed. In Runnymede BC v Smith  JPEL 592, it was held that this provided protection even for caravans which had come on to the site with knowledge of the stop notice, and an injunction was refused on these grounds. In my view, this exception is an unnecessary restriction on the use of the power to prevent serious injury to amenity in appropriate cases. The potential damage caused by unlawful caravan sites can be considerable, and the risks of abuse are not significantly greater than in other cases where the stop notice procedure applies, for example where livelihoods are at stake."
"(1) Where the local planning authority consider it expedient that any relevant activity should cease before the expiry of the period for compliance with an enforcement notice, they may, when they serve the copy of the enforcement notice or afterwards, serve a notice (in this Act referred to as a 'stop notice') prohibiting the carrying out of that activity on the land to which the enforcement notice relates, or any part of that land specified in the stop notice.
(2) In this section and sections 184 and 186 'relevant activity' means any activity specified in the enforcement notice as an activity which the local planning authority require to cease and any activity carried out as part of that activity or associated with that activity.
(3) A stop notice may not be served where the enforcement notice has taken effect.
(4) A stop notice shall not prohibit the use of any building as a dwellinghouse."
Temporary stop notices
"A temporary stop notice does not prohibit –
(a) the use of a building as a dwellinghouse;(b) the carrying out of an activity of such description or in such circumstances as is prescribed."
"(1) The stationing of a caravan on any land in the circumstances specified in paragraph (2) is prescribed for the purposes of section 171F(1)(b) of the Town and Country Planning Act 1990.
(2) The circumstances are that –
(a) the caravan is stationed on the land immediately before the issue of the temporary stop notice; and(b) the caravan is at that time occupied by a person as his main residence;
unless the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect."
The issue under article 14 ECHR
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
(a) The protection of the environment through planning control is a legitimate and important objective in the public interest, even in cases which concern depriving gypsies of their place of residence (and even against the background of overall inadequate provision of sites for gypsies): Chapman v United Kingdom (2001) 33 EHRR 18, especially at paras 90-100.
(b) Gypsies should be given an element of special consideration (Chapman at para 96, and Connors v United Kingdom (2004) 40 EHRR 189, at para 84), but that does not without more override the need for environmental protection.
(c) In terms of environmental protection, there are substantial material differences between the impact of the stationing of caravans on a site and the use of a pre-existing building for residential purposes. A change of use of an existing building from a non-dwelling to a dwelling in breach of planning control is not likely to have the same impact on the environment as the bringing of residential caravans onto land in breach of planning control. (The focus is on the use of an existing building rather than on the construction of a new building, because it is said that there will generally be an opportunity to stop the work of construction of a new building at an earlier stage, before it becomes occupied for residential purposes.)
(d) In framing legislation which involves weighing up strong competing interests on both sides (protection of the environment, etc., versus protection of the right to respect for the home), the legislature is to be accorded a significant margin of appreciation or discretionary area of judgment as to how the balance between those interests should be struck: see especially Chapman, at paras 90-95; Hatton v United Kingdom (2003) 37 EHRR 611, at para 97; Marcic v Thames Water Utilities  2 AC 2, at paras 41, 71 and 84; Blecic v Croatia (2005) 41 EHRR 13, at para 65; Sporrong and Lonnroth v Sweden (1982) 5 EHRR 35, at para 69; and Stec v United Kingdom, Strasbourg court judgment of 12 April 2006, at paras 51-52.
(e) In striking the relevant balance, it was legitimate for Parliament to adopt a simple "bright line" rule. Prior to 1991 there was a bright line rule whereby a stop notice was available in all cases except in relation to dwellinghouses and residential caravans. In 1991, in accordance with the recommendation in the Carnwath report, it was decided to shift the bright line rule to the extent of taking residential caravans out of the exempt category and putting them into the general category where a stop notice was available. Especially where there is a wide margin of appreciation, the choice of rule to balance particular competing interests across a range of different cases (whether in terms of a bright line rule or a rule which is more fact-sensitive) is one for the legislature to make: James v United Kingdom (1986) 8 EHRR 123, at paras 68-69 and 76-77; Wilson v First County Trust Ltd (No 2)  1 AC 816, at paras 68-78, 109, 138 and 169; Petrovic v Austria (2001) 33 EHRR 14; Hoogendijk v Netherlands (2005) 40 EHRR SE22, at pp 207-208; R (Hooper) v Secretary of State for Work and Pensions  1 WLR 1681, at para 16; R (Carson) v Secretary of State for Work and Pensions  1 AC 173, at paras 22, 32, 41, 45, 86-88 and 91; Stec v United Kingdom (supra), at para 57; Evans v United Kingdom (2006) 43 EHRR 21, at para 65.
(f) In the present context the difference in treatment is in fact limited in its practical effects. There is a bright line rule which ensures respect for the article 8 rights of those in dwellinghouses, as opposed to a fact-sensitive rule applicable under section 6(1) of the Human Rights Act 1998 which also arrives at proper protection of the article 8 rights of those in residential caravans (since an authority could not lawfully use a stop notice in circumstances which involved a disproportionate interference with rights under article 8 on the facts). Further, other planning enforcement measures remain available in both cases. The different immediate impact upon the environment likely to be associated with bringing caravans onto land in breach of planning control, as opposed to a change of use of an existing building into a dwelling, is such as to warrant the difference in approach in the two cases.
(g) In considering the proportionality of the solution adopted by Parliament it is relevant that the court is dealing with a case of indirect discrimination rather than direct discrimination. A neutral rule applicable to everyone equally, as here, will be more readily capable of being justified and compatible with article 14 than a rule which is directly discriminatory: Chapman v United Kingdom (cited above) at paras 95 and 127-129; Hoogendijk v Nethherlands (cited above) at pp 207-208.
(h) Further, the proportionality of the difference in approach in the two cases is underlined by the wider steps that the Secretary of State is taking to ensure that suitable provision is made for gypsy sites, so that gypsies will have a reasonable opportunity to satisfy their need to find pitches for their caravans without violating planning controls.
(a) Mr George seeks to rely on Hansard in order to show that, when the 1991 Bill was debated, nothing was said to highlight the fact that the wording of section 183(4) of the 1990 Act was being altered to remove caravans from the former exemption, and there was no reference in debates to that change or to the relevant subsection. It is submitted that, if Parliament gave no consideration to the reasons for removing caravans from the exemption, to the effects of the removal, or to whether the means used to achieve the relevant aim were no more than necessary for the purpose, the court should take that into account in its assessment of proportionality. The court should not allow the same discretionary area of judgment to the legislature if the legislature has not considered the matter at all.
(b) The purpose of the stop notice regime is to protect the public against serious harm to amenity. It is accepted that protection against environmental damage is a legitimate aim. But the extent to which serious harm is caused by any unauthorised development will depend upon all the circumstances, and there can be no assumption that the stationing of residential caravans on land will either cause serious harm or will be more likely to do so than development to which the dwellinghouse exemption applies.
(c) Further, even if the stationing on residential caravans on land will generally cause more immediate environmental damage than the change of use of a building to a dwellinghouse, that does not justify the entire removal of residential caravans from the former exemption. A more limited exemption, applicable "save where the caravan occasions serious injury to amenity" (or some similar expression), would meet the legitimate aim.
(d) The provision adopted in relation to temporary stop notices, whereby residential caravans enjoy the same exemption as dwellinghouses save where the local planning authority considers that the risk of harm to a compelling public interest is so serious as to outweigh the benefit to the occupier of the caravan, demonstrates the feasibility and desirability of a more nuanced approach and proves the lack of justification for the total removal of the exemption in the case of full stop notices.
(e) The legislature's area of discretion in a case such as this is at best very small indeed, given that this is a case of racial discrimination and comes close to one of direct discrimination. Authorities relied on by Mr George, in addition to those to which I have already referred, include Ghaidan v Godin-Mendoza  EWCA Civ 1533,  Ch 380 (Court of Appeal) and  UKHL,  2 AC 557 (House of Lords), and Timishev v Russia, Strasbourg court judgment of 13 December 2005. The fact that breach of a stop notice is a criminal offence is said to be a further reason why the court should scrutinise the justification with particular intensity.
(f) The existence of discriminatory legislation cannot be justified by the duty on local planning authorities to act compatibly with article 8 in reaching decisions in individual cases.
(g) In all the circumstances, if discrimination can be justified at all, the area of discrimination must be kept to the minimum necessary to deal with the problem. Since in this case any problem can be dealt with equally by lesser means, as shown by the provision in respect of temporary stop notices, the Secretary of State cannot justify the degree of discrimination involved in conferring a total exemption on dwellinghouses but no exemption at all on residential caravans.
The use of Hansard
"67. Beyond this use of Hansard as a source of background information, the content of parliamentary debates has no direct relevance to the issues the court is called upon to decide in compatibility cases and, hence, these debates are not a proper matter for investigation or consideration by the courts. In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which 'counts against' the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill or Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute …."
"it is not apparent that the Executive in proposing, or Parliament in enacting, [the provision] gave consideration to its potential discriminatory impact in any of the respects proscribed by Article 14 or to the justification, if any, for it; but even if they did, the enactment of such a provision, with such effect, could not have fallen within even the very wide ambit of discretion allowed to the Government and Parliament in such matters."
Whilst it is clear that the relevant passage from Lord Nicholls's judgment in Wilson v First County Trust Ltd (No 2) was cited to the court (see per Sedley LJ at para 39), it does not appear that the court heard argument along the lines addressed to us or that the court's decision depended in any way on the lack of express consideration of the issue by the legislature. In those circumstances I would not place great weight on Auld LJ's reference to the apparent lack of consideration of the issue, and I do not think that the case gives any real support to Mr George's submissions concerning the use of Hansard.
The issue of justification
"Where a dwelling has been established without the planning permission which is needed under national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her own home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."
Proportionality: general principles
"For completeness I should add that arguments based on the extent of the discretionary judgment accorded to the legislature lead nowhere in this case. As noted in Wilson v First County Trust Ltd (No 2)  1 AC 816, 844, para 70, Parliament is charged with the primary responsibility for deciding the best way of dealing with social problems. The court's role is one of review. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention rights. The readiness of the court to depart from the view of the legislature depends upon the subject matter of the legislation and of the complaint. National housing policy is a field where the court will be less ready to intervene. Parliament has to hold a fair balance between the competing interests of tenants and landlords, taking into account broad issues of social and economic policy. But, even in such a field, where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified " (emphasis added).
"Where there is an allegation that article 14 has been infringed by discrimination on one of the most sensitive grounds, severe scrutiny is called for" (emphasis added).
He cited the passage in Lord Nicholls's judgment in Ghaidan that I have just quoted and the judgments of the Strasbourg court that refer to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds.
"… In seeking to discharge that burden, it is simply not enough to claim that what has been done falls within the permissible ambit of Parliament's discretion: because all that that shows is that the decisions taken are not be regarded as necessarily unjustified. A much more positive argument is required if the burden … is to be discharged.
… The general organisation of housing policy, and in particular of public housing, … clearly involves complex questions of social or economic policy that the courts should only enter with trepidation. But I have no hesitation in saying that issues of discrimination, which it is conceded we are concerned with in this case, do have high constitutional importance, and are issues that the courts should not shrink from. In such cases deference has only a minor role to play."
Keene LJ stated, at para 44:
"Where discrimination against a minority is concerned, amounting on the face of it to a breach of article 14 rights, the courts are entitled to require to be satisfied that a proper and rational justification for the difference in treatment has been made out. It is, as Buxton LJ has emphasised, a matter involving rights of high constitutional importance where the courts are equipped to arrive at a judgment. It is indeed a classic role of the courts to be concerned with the protection of such minority rights. That being so, this court is entitled to ask whether there is any rational and proportionate basis for the distinction …."
"… Racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of enrichment ….
The Government did not offer any justification for the difference in treatment between persons of Chechen and non-Chechen ethnic origin in the enjoyment of their right to liberty of movement. In any event, the Court considers that no difference in treatment which is based exclusively or to a decisive extent on a person's ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures."
(See also para 14.028 of Sweet & Maxwell's Human Rights Practice, where Timishev is relied on for the proposition that discrimination on grounds of race or of actual or perceived ethnic origin could never be justified under article 14, and other points are made about the strict approach adopted towards racial discrimination.)
"The Court accepts that where state authorities reconcile the competing interests of different groups in society, they must inevitably draw a line marking where a particular interest prevails and another one yields, without knowing precisely its ideal location. Making a reasonable assessment as to where the line is most properly drawn, especially if that assessment involves balancing conflicting interests and allocating scarce resources on this basis, falls within the State's margin of appreciation."
"The Court accepts that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the 'bright-line' at the point of creation of the embryo. It notes in this regard that the latter solution has been adopted in a number of Member States of the Council of Europe. However, the central question in terms of Art.8 of the Convention is not whether a different solution might have been found by the legislature which would arguably have struck a fairer balance, but whether, in striking the balance at the point at which it did, Parliament exceeded the margin of appreciation afforded to it under that Article …."
At para 74 the court held that the reasons given for finding that there was no violation of article 8 also afforded a reasonable and objective justification under article 14. Mr George pointed to passages in the dissenting opinion of two members of the court in which it was stated that exceptions to a bright line rule should be allowed where the rigid application of such a rule could lead to irreparable harm or to the destruction of the essence of one party's rights; bright line legislation is exceptional and must be strictly scrutinised by the court. It suffices to note, however, that that more limited approach towards bright line rules did not represent the reasoning of the majority of the court.
Proportionality: application to the facts
"Evidence has shown that unauthorised development to establish a residential caravan site can be rapid, planned and systematic. In a short space of time, caravans can be moved onto the land (for which planning permission for the siting of residential caravans would be required), hardstanding and roadways put in place, tarmac laid, hedges removed, services including water and power connected. As this kind of development proceeds it can impose increasingly long-lasting and in some cases irreparable damage. Once the development is complete, continued occupation can pose an ongoing serious impact on highway safety, to wildlife and habitats and in some cases to community related issues, such as the effect on educational or health facilities. The reality of the situation is that if the breach of planning control is not dealt with effectively at the earliest stage, for example by a stop notice, it often becomes increasingly difficult to remedy the breach later. This may be particularly important in terms of environmental damage, for example by the laying of roads, or the removal of hedgerows."
The facts of the present case provide a good illustration of the problem. So do those of Coates v South Bucks District Council  EWCA Civ 1378. In such cases the need for urgent enforcement action through the issue of a stop notice may be very great - even if, in practice, stop notices are frequently not complied with despite the criminal sanctions attaching to them.
"44. … Ministers have considered further the most appropriate and proportionate approach on the degree to which the TSN [temporary stop notice] regime should give protection to those stationing caravans on land. Having reviewed matters carefully, including circumstances in which unauthorised development of caravan sites occur and the damage they can cause, Ministers have reached the conclusion that in cases of very serious harm, TSNs should be capable of being used in respect of caravans to require their removal from a site. In other words, on reflection, Ministers consider that the forms of immediate harm which may be caused by the stationing of caravans on land in breach of planning controls may be so severe that a complete exemption from the TSN regime would not be justified. An example of a case where it is envisaged the TSN might be used would be where caravans have moved onto a Site of Special Scientific Interest, as has happened recently.
47. Therefore, in relation to caravans, in all but the most serious cases, i.e. those where the stationing of caravans presents a threat to a compelling public interest (e.g. where endangered habitats are threatened of where there are real public safety or public health concerns), TSNs will not be able to be served. In the category falling outside the most serious cases, TSNs will only be served to prevent more caravans joining a site or further development of the site."
Proportionality: the appellant's criticisms of Crane J's judgment
"40. While, as I have explained, I cannot give great weight to several of the arguments raised by Mr Sales on behalf of the Secretary of State, I have come to the conclusion that his principal argument, that usually a change of use of a building to a dwelling will cause less immediate environmental damage than stationing of a residential caravan, is correct. In those circumstances the 'bright line' rule in relation to dwellings only is in my view proportionate and a regime such as that for temporary stop notices is not required by considerations of proportionality.
41. It is highly relevant that the difference in treatment is not between an inability to issue a stop notice on the one hand and freedom to do so without regard to the Convention rights of gypsies and travellers on the other. It is between an ability to issue a stop notice and an ability to do so after taking into account Convention rights."
Lord Justice Moses :
Sir Anthony Clarke MR :