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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 (22 January 2009) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2009/13.html Cite as: [2009] EWCA Civ 13, [2009] NPC 10, [2009] 4 EG 117, [2009] JPL 1074 |
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C1/2008/1188, C1/2008/1202 |
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE COLLINS
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LLOYD
and
LORD JUSTICE MOSES
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Basildon District Council |
Appellants |
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- and - |
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McCarthy & Ors |
Respondents |
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Culligan & Ors |
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Coyle & Ors |
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Taylor & Ors |
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- and - |
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Equality & Human Rights Commission |
Intervener |
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Mr J Luba QC and Mr A Offer (instructed by Messrs Davies Gore Lomax) for the Respondents in McCarthy & Ors and Culligan & Ors
Mr J Luba QC and Mr D Watkinson (instructed by Messrs Bramwell Browne Odedra for the Respondents in Taylor & Ors)
Mr J Luba QC and Mr D Watkinson (instructed by Southwest Law Limited for the Respondents in Coyle & Ors)
Robin Allen QC by written submissions, instructed by the Equality and Human Rights Commission as Interveners
Hearing dates : 4 and 5 December 2008
____________________
Crown Copyright ©
Lord Justice Pill :
"There are before me four claims by over 40 families of mainly Irish Travellers or Gypsies who are resident on unauthorised sites in the Council's district. The land which they occupy is in the Green Belt and planning permission has been refused. Enforcement notices have been served and upheld on appeal. The Council now seeks to remove their caravans from the land they occupy and to enforce compliance with the notices by removing the hard standing which has been placed on the land so that it is restored to its natural state."
"Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may –
(a) Enter the land and take the steps;
(b) Recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."
Section 178 also empowers the making of regulations to permit provisions in the Public Health Act 1936 to apply to any steps required to be taken by an enforcement notice. Section 178(6) provides that any person who wilfully obstructs a person acting in the exercise of powers under sub-section (1) "shall be guilty of an offence . . ."
"65. There can be no doubt that the claimants cannot remain where they are and that the time must come when they will have to leave, whether voluntarily or by means of forcible eviction. Despite the difficulties they face and the absence at present of sufficient sites to meet their needs, Travellers and Gypsies must appreciate that the law will not tolerate developments without planning permission being obtained, particularly on Green Belt land, and will be likely to uphold enforcement action where the individual circumstances of those affected have been properly considered against the harm to the environment and to relations with the community. Nevertheless, it is necessary for all relevant matters to be properly taken into account and it is impossible not to have some sympathy with the problems created for Gypsies and Travellers by the lack of sufficient sites to cater for their proper needs.
66. I have no doubt that a decision to enforce under s.178 is likely to be unassailable in respect of most and perhaps all of the claimants in due course. But there are concerns which I have already spelt out. It seems to me that the approach to need has been too restrictive and that, following in particular the EERA report (albeit not accepted by the Council), further consideration should be given to whether any sites can be found in the district and whether any families can be allowed to remain for the time being. In addition, I do not think the possible effects of the homelessness duty have been sufficiently dealt with in the advice given to the Committee. Finally, I think that the approach has been that the sites should be cleared rather than a consideration of whether there are any individual families whose circumstances are such, whether because of serious ill-health or the needs of their children, that in their individual cases eviction would be disproportionate. I am not to be taken as saying that there necessarily are any such, but I think that possibility should have been drawn to the Committee's attention.
67. I am conscious that this decision may mean no more than that a little more time is given to the claimants and the Council may feel that yet further delay is to be deprecated. Nonetheless, the decision, whichever way it goes, must be based on consideration of all that is relevant. But in the circumstances for the reasons I have given I am persuaded that the decisions of 13 December 2007 cannot stand."
". . . it is necessary for the Council at least to consider whether any other sites can be found. I appreciate that this may not provide for all those affected by the decision to enforce, but, if there is a question of priorities, the individual circumstances of the various families will have to be taken into account."
"The [officers'] reports had annexed the individual circumstances of the various families . . . there was a possibility that enforcement action could be taken against some but not all the occupants. A small number who had serious health or educational difficulties might be permitted to remain at least on a temporary basis. I think that option should have been spelt out."
"The Secretaries of State expect authorities to take careful account of these obligations [Children Act 1989 and Housing Act 1985] when taking decisions about the future maintenance of authorised Gypsy caravan sites and eviction of persons from unauthorised sites."
Statistics
"To accept that demand must be satisfied at the point at which it arises is overly simplistic, it will inevitably give rise to disproportionate site distribution and lead to overly large settlements that are unlikely to be sustainable. Accordingly the Council has not allowed any land to further Gypsy / Traveller site development ahead of the issue of the draft Gypsy / Traveller Single Issue Review RSS [regional spatial strategy]."
"To contribute to housing provision in the east of England as a whole, provision will be made for at least 1,187 net additional residential pitches for Gypsy and Traveller caravans over the period 2006 to 2011."
The officers' report
"In considering whether to take action to secure compliance with the requirements of the extant Enforcement Notices issued in respect of unauthorised development, the Council must balance the public interest in securing the removal of development that has occurred, which is now in breach of criminal law, against any personal circumstances of the occupiers of the site, should that be relevant, and any hardship which could be caused. The decision should also take into account the accommodation needs of the [claimants]."
"It follows that the following factors continue to weigh against allowing the development or permitting it to remain notwithstanding the extant enforcement notices:
(1) There is clearly a very significant impact upon the Green Belt by reason of the inappropriateness of the development. This is a matter, which is to be afforded substantial weight;
(2) There are highway objections, which clearly weighs against the development;
(3) The development clearly has an adverse affect upon the living conditions of neighbouring residents in the settled community and this could be taken into consideration, although the weight that could be given to this factor should be limited."
"The emergence of regional policy guidance is an ongoing process and the issue of gypsy site provision will clearly not be resolved in the short term. It is therefore considered that little weight can be attributed to the emerging policy guidance in the consideration of this report."
"The personal circumstances included in part ii of this report [information relating to personal circumstances], is compiled from information the Council received from both the Travellers and their legal representatives. The Council has no reason to believe that those circumstances relied upon in August 2006 have changed in any significant way that would indicate that a different conclusion should be reached at this present time than that reached by the Secretary of State in relation to the planning appeals.
As this is a report to consider and decide upon what if any enforcement action should be taken to achieve compliance with the extant enforcement notices, the decision maker whilst undertaking the balancing exercise should take the following factors into consideration. A resolution to proceed with any action is likely to result in the occupiers being required to leave the site, consequently interfering or preventing access to the healthcare and education that they had hitherto been afforded. It should also be noted that there are no available alternative sites in the vicinity and those that would be affected by an adverse decision may be required to leave the site, with nowhere else to go, other than to resort to illegal camping. Members should therefore assume that if enforcement action is taken those required to leave the land will have to resort to camping on the roadside.
It is furthermore considered that the First Secretary of State's decision to refuse planning permission and uphold the Council's Enforcement Notices requiring breaches of planning control to be remedied remains relevant today and it has not been overridden by any changes in circumstances, which may have occurred if any since those decisions.
Information relating to the personal circumstances of the occupiers of these sites has been disturbed to Members of the Committee separately."
"Clearly the continued use of the land for residential purposes involving the siting of static and touring caravans, portable utility structures and the formation of hardstandings on the land is in flagrant breach of valid enforcement notices and is a criminal offence. The development is inappropriate within the Green Belt, which is a consideration that should be given substantial weight. The Secretary of State concluded in the recently dismissed appeals that there was significant harm to the Green Belt. It was also concluded there was harm to highway safety because of the limitations of the highway network in the locality. The issue of need and the personal circumstances of the occupiers did not outweigh the identified harm.
The key issue for Members to weigh in the balancing exercise is whether the impact of taking action to secure compliance with the enforcement notices on the occupiers of the sites is such that the public interest in enforcing planning control should be set aside in favour of allowing the unauthorised development to remain.
It is for Members to judge the weight that should be attached to each consideration. If they conclude that the circumstances of the occupiers, and the hardship suffered if enforced against, are insufficient to outweigh the upholding of the Council's and national planning policies then Members must consider what option to pursue to secure compliance with the enforcement notices."
"Members were reminded that, in considering whether to take action to secure compliance with the requirements of the extant Enforcement Notices issued in respect of unauthorised development, there was a need to balance the public interest in securing the removal of development that has occurred, which was now a breach of criminal law, against the personal circumstances of the occupiers of the site, including their human rights, and any hardship which could be caused. The accommodation needs of the Gypsy and Traveller community in the context of current national policy contained in circular 1/2006 were also considered."
"The Secretary of State considered that the issue of need and the personal circumstances of the occupiers did not outweigh the identified harm."
(The 2008 decisions of the Secretary of State were to the same effect).
"Given the conclusions of the appeal decision of 22 February 2007, officers' view was that there was no prospect of any full or temporary planning permission being granted on appeal should any further application be made.
Members complimented officers on the comprehensive report and discussed the history of the site, the breaches of planning law, and the personal circumstances of the residents on the unauthorised sites. Having full regard to all updated and new information it was not felt that there had been any substantial change in the overall circumstances. There was insufficient evidence to demonstrate that the residents of the site needed to be based within the Basildon district for the provision of health care or education. The majority view was that the decision to serve Enforcement Notices had been correct and supported by the Secretary of State. Whilst being deeply sympathetic to the needs and circumstances of the residents of the site and the likelihood that a decision to take direct action would force residents to illegally camp on the roadside or other land, most Members did not feel that these outweighed the requirement to end the continued breaches of existing valid Enforcement Notices and the uncertainty for both the travellers and the local settled community. Members also had regard to the 3 prongs of the race equality duties and the adverse impact identified in the racial impact assessments. Most Members considered that direct action was justified as it corresponded to a legitimate aim and was proportionate."
Circular 01/2006
"(b) to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;
(c) to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission in order to address under-provision over the next 3-5 years;
(g) to ensure that DPDs [development plan documents] include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively;
(i) to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to."
The tension between intentions (b) and (i) is obvious.
"The RSS [regional spatial strategy] revision should identify the number of pitches required (but not their location) for each local planning authority in the light of the GTAAs [gypsy and traveller accommodation assessments] and a strategic view of needs across the region."
Paragraph 30 provides:
"The number of pitches set out in the RSS must be translated into specific site allocations in one of the local planning authority's DPDs that form part of the LDF [local development framework]."
Paragraph 8 provides that "site-based decisions and allocations are made at the local level" and the DPDs "will identify the location of appropriate sites". In paragraph 37 it is stated that all DPDs are subject to independent examination. It may be noted that paragraph 3.16 of the council's CSIP provides that "once the target number of pitches is finally decided in the SIR of the RSS, the Gypsy & Traveller DPD will identify specific sites to meet the target required."
"Local authorities will also need to have regard to their statutory duties, including those in respect of homelessness under Part VII of the Housing Act 1996 and to their obligations under the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000."
"Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs.
. . . .
Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy."
". . . Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.
Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay."
"There is a general presumption against inappropriate development within Green Belts. New gypsy and traveller sites in the Green Belt are normally inappropriate development, as defined in Planning Policy Guidance 2: 'Green Belts' (PPG2). National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF, to meet identified need. Criteria-based policies in DPDs for the location of gypsy and traveller sites (see paragraph 31 and 32 above) should not depart from national planning policy as set out in PPG2."
At paragraph 51, it is stated:
"Alterations to the Green Belt boundary can be used in exceptional circumstances for housing and other types of development inappropriate for the Green Belt . . . Such a proposal should be brought forward through the plan making process."
Need
"There is a . . . significant demand for accommodation. Whether the demand is to be equated with "need" depends upon whether (a) there is any functional requirement for the demand to be met in Basildon and (b) any functional need for the land to be within the Green Belt."
". . . the Council must take into account the existence of the need and take such steps as it can reasonably take to cater for that need. But it may be impossible for the Council to make any provision or reasonable for it not to do so having regard to the dangers caused by and the circumstances of the unlawful occupation in which case the need, albeit a weighty factor in favour of avoiding eviction if reasonably possible, cannot require that enforcement action not be taken."
Authorities
"96. Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life . . .
98. The Court does not, however, accept the argument that, because statistically the number of Gypsies is greater than the number of places available in authorised Gypsy sites, the decision not to allow the applicant Gypsy family to occupy land where they wished in order to install their caravan in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom, as on all the other Contracting States, an obligation by virtue of Article 8 to make available to the Gypsy community an adequate number of suitably equipped sites. The Court is not convinced, despite the undoubted evolution that has taken place in both international law, as evidenced by the Framework Convention, and domestic legislations in regard to protection on minorities, that Article 8 can be interpreted to involve such a far-reaching a far-reaching positive obligation of general social policy imposed on States . . .
101. In this connection, the legal and social context in which the impugned measure of expulsion was taken against the applicant is, however, a material factor.
102. Where a dwelling has been established without the planning permission which is needed under the 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 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."
"Mr Allen's suggestion that the sub-committee should have considered bringing forward sites outside the scope of the development plan process was not a course of action which was realistically open to the respondent. Contrary to his submission, it would not have been in accordance with the Secretary of State's policy as set out in Circular 1/2006. Despite that circular's recognition of the need for more sites for Gypsies and Travellers, it contains repeated references to meeting the need by means of the development plan process. Thus paragraph 8 states
"The Development Plan Documents (DPDs) will identify the location of appropriate sites",
And the same point is made at paragraphs 19 ("Overview"), 21 and 33, the last of which emphasises the need for local planning authorities to be able to demonstrate that sites are suitable. Even when dealing with Transitional Arrangements the Circular still adheres to the development plan process, making the point in paragraph 43 that, where there is clear and immediate need, local planning authorities should bring forward DPDs in advance of regional assessments. Nowhere is there any encouragement to authorities to take action outside the development plan process, and that is entirely understandable, first because we have a development plan-led system, and secondly because to try to bring forward a site by by-passing the system would be likely to exacerbate the controversy which generally attends proposals for sites for Gypsies and Travellers. It would not be a recipe for speedy provision."
"It is one thing to say that an authority exercising eviction powers should be aware of the traumas and upsets that it likely would cause, and of the implications for their own responsibilities under the various statutes to which I have referred. It is another thing to say there is a binding obligation in law on them to carry out all of the investigations under those statutes before initiating proceedings. In my view, there is no legal basis for such a proposition."
Further submissions by respondents
"Some Gypsies and Travellers may have a cultural aversion to the prospect of "bricks and mortar" accommodation. In such cases, the authorities should seek to provide an alternative solution. However, where the authorities are satisfied that there is no prospect of a suitable site for the time being, there may be no alternative solution. Authorities must give consideration to the needs and lifestyle of applicants who are Gypsies and Travellers when considering their application and how best to discharge a duty to secure suitable accommodation, in line with their obligations to act consistently with theHuman Rights Act 1998, and in particular the right to respect for private life, family and home."
On the basis of Codona v Mid-Bedfordshire DC [2004] EWCA Civ 925, it is accepted that an offer of bed and breakfast accommodation may in some circumstances be a discharge of duties under the Housing Act, at any rate in the short term.
The statutory equality issues
"In my judgment, it is important to emphasise that the section 71(1) duty is not a duty to achieve a result, namely to eliminate unlawful racial discrimination or to promote equality of opportunity and good between persons of different racial groups. It is a duty to have due regard to the need to achieve these goals. The distinction is vital. Thus the Inspector did not have a duty to promote equality of opportunity between the appellants and persons who were members of different racial groups; her duty was to have due regard to the need to promote such equality of opportunity. She had to take that need into account, and in deciding how much weight to accord to the need, she had to have due regard to it. What is due regard? In my view, it is the regard that is appropriate in all the circumstances. These include on the one hand the importance of the areas of life of the members of the disadvantaged racial group that are affected by the inequality of opportunity and the extent of the inequality; and on the other hand, such countervailing factors as are relevant to the function which the decision-maker is performing."
"57. It is suggested that the officers' reports fail to discuss or consider properly ameliorative measures, in particular the giving of time until an alternative site is found. But the committee was well aware of the planning decisions which had considered but rejected the possibility of temporary permission or, beyond the extensions of time for compliance granted on earlier enforcement appeals, any further time within which there could be compliance. Under the heading 'enforcement action' in each report the officers have clearly set out the relevant obligations to consider the effect on the claimants if they are to be evicted. The lack of alternative sites and the view of the Secretary of State and her Inspectors that there was a need disclosed by the extent of the unauthorised encampments (a view which was not entirely accepted by the Council) were drawn to member's attention as material considerations.
58. Despite Mr Allen's lengthy and detailed submissions, I have no doubt that it is impossible to conclude that the Council was merely paying lip service to the race equality duty. The officers' reports spelt out correctly the considerations that had to be taken into account. It has not been submitted that the decision to evict was perverse. In those circumstances, it cannot properly be suggested that the committee ignored the advice given to it in the reports."
Decisions on enforcement notices
"The Secretary of State has agreed with the Inspector that all 7 of the appeal proposals amount to inappropriate development in the Green Belt and that they are harmful as such. Furthermore, she has agreed that the proposals all cause further harm to the openness and purposes of the Green Belt and harm to highway safety. The Secretary of State has balanced these harms against the need for additional gypsy sites in the area, the appellants' need for sites, the lack of alternative accommodation options and the appellants' health needs and, with the exception of appeal D, their education needs. The Secretary of State concludes that those elements weighing in favour of allowing one or more of these appeals do not outweigh the harm caused by each of the appeal proposals."
". . . The Secretary of State agrees with the Inspector that it is reasonable to assume that if the appeals are dismissed then eviction will follow and this would result in interference with the appellants' home and family life. However, the Secretary of State also agrees with the Inspector that the interference has to be balanced against the harm to the Green Belt and to highway safety caused by the developments and she further considers that the public interest in pursuing the legitimate aims of Article 8 must include the protection of the environment."
Temporary permission was also refused.
"The Secretary of State has also taken into account the emerging Regional Spatial Strategy (RSS) for the East of England (the East of England Plan). The Secretary of State's Proposed Changes, and Proposed Further Changes have been published, and it carries significant weight. Policy H4 deals with provision for Gypsies and Travellers, and Policy SS7 confirms that no strategic or local review of Green Belt boundaries in this area is proposed. The East of England Regional Assembly is undertaking a single issue review of the East of England Plan to identify the number of Gypsy and Traveller pitches required across the East of England, and an issues and options consultation paper was published in May 2007. However, as the review is still at a very early stage, the Secretary of State considers that it should carry little weight."
"The Secretary of State considers that the exact extent of the local needs is not known, and that there is no certainty at this stage that Basildon District Council will in the future be required to provide more sites. The district level allocation of pitch numbers will not be finalised until the East of England single issue review is complete, and work on this is currently at an early stage. However, she does consider that a current need in this area has been demonstrated. Circular 01/06 makes it clear that factors such as the presence of significant numbers of unauthorised developments can provide evidence of need (Paragraph 43)."
"The Gypsy/Traveller Draft Single Issue Review of the RSS is due to be published in January 2008 and it will contain details of the number of pitches the Regional Assembly for the East of England will expect Basildon to provide. The issue of this document will signal the commencement of work in accordance with the council's LDF on the production of the council's Gypsy/Traveller Development Plan Document."
"The inspector concluded, on the basis of information before him, that, planning circumstances were likely to change within Basildon within the next 3 to 4 years as Gypsy accommodation needs were finalised and additional Gypsy sites were identified. However, the harm that the appeal proposal caused to the Green Belt, to local character and residents' living conditions was unacceptable even on a temporary basis. Thus dismissal of the appeals was proportionate despite the effects on the appellants and their families."
Conclusion
Lord Justice Lloyd :
Lord Justice Moses :