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||Neutral Citation Number:  EWHC 2938 (Admin)
||Case Nos. CO/9098/2011, CO/9115/2011, CO/9316/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||12 October 2011
B e f o r e :
MR JUSTICE OUSELEY
||THE QUEEN ON THE APPLICATION OF
||CORNELIUS SHERIDAN and others
||BASILDON DISTRICT COUNCIL
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MR M WILLERS and MISS I SABIC appeared on behalf of Mary Sheridan
MR C JACOBS appeared on behalf of Cornelius Sheridan and others
MR RICHARD HARWOOD and MISS E WILES appeared on behalf of Margaret McCarthy
MR REUBEN TAYLOR (instructed by the Solicitor to the Council) appeared on behalf of the Defendant
HTML VERSION OF JUDGMENT
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MR JUSTICE OUSELEY: I am grateful to all counsel for their submissions. I recognize the strength of feeling on each side. I am grateful to the parties for the way in which they have all conducted themselves, although it is clear that at the end of this hearing one side is going to be disappointed.
- I am concerned with three separate but very closely related cases which all challenge decisions by Basildon District Council relating to its intended exercise of powers under section 178 of the Town and Country Planning Act 1990 to enter plots of land owned or occupied by the various claimants and others at Dale Farm near Basildon itself, and there to take the steps which effective enforcement notices require the owners to have taken many years ago to remedy breaches of planning control. In particular, the controversial steps are the removal of caravans, the removal of hardstanding and the cessation of the residential use. Two actions have been brought in the name of single individuals and a third in the name of 11 individuals who formed the Dale Farm Housing Association. Each action refers to and relies on the circumstances of other residents in addition to the main claimants, and seeks to apply its argument to all residents, for the benefit both of the claimants in the individual cases and for the others who live on the site. None are solely concerned with circumstances peculiar to the individual claimants alone.
- All were dealt with as rolled-up hearings with the permission and substantive hearings being dealt with together. Permission to apply for judicial review has not yet been granted in any of them.
- The third action was ordered in to be dealt with late in the day before my hearing began in the other two. There were accordingly three sets of counsel and three separate solicitors to represent the claimants in those three actions. A fourth action had been started in the name of Mary Flynn in July seeking a stay the removal on human rights grounds which Kenneth Parker J refused on 31 August on grounds of res judicata in the light of a Court of Appeal decision in January 2009. Permission to appeal was refused on 19 September but on different grounds by Pill LJ.
- There was yet a fifth action, again brought by a single claimant, Mr Patrick Egan, dealt with by Edwards-Stuart J in the Queen's Bench Division. This dealt with an issue over the extent to which action under section 178 could lead to the demolition of all walls, gates and fences and the removal of all caravans and buildings on the site. This was an issue over the area, scope and interpretation of the effective enforcement notices. The effect of the judgments of Edwards-Stuart J, following discussion between the parties in the light of an interim judgment that he gave, was that a residential building on plot 28 cannot be removed under these proceedings, which was never an issue; the stationing and residential use of caravans on plots 45, 50 and 51 cannot be affected in this action, save to the extent necessary to remove the hardstanding on which they are placed; the brick building on plot 33 cannot be struck at by these proceedings; a building on plot 18 is subject to an enforcement notice but cannot be dealt with by this action. The hardstanding on plots 21, 22, 23 and 52 to 54 at Beauty Drive is not struck at by the effective enforcement notices. The gates, walls and fences cannot be removed except for the temporary purpose of carrying out the steps required under section 178, following which they have to be replaced. That is because they are permitted development.
- There is no reason why that fifth action should not have been started much earlier and it ought to have been brought in the Administrative Court where it would have been subject to the relevant time limits.
- Section 178 of the Town and Country Planning Act provides as follows:
"(1) 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; and
(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."
- There are some 54 plots on Dale Farm, the number varying slightly depending on which document is referred to. The Dale Farm site adjoins an authorised site at Oak Lane. It is often referred to as being in two parts, the horseshoe part which surrounds on three sides a middle part. The plots are referred to by different numbers in various documents or by addresses. I shall use the plot numbers in the plan at page 340 in the claimant's bundle in claim CO/9098/2011.
- Travellers purchased and started moving caravans on to these former plotlands at the end of 2001 or at the start of 2002, and imported substantial amounts of hardcore to provide for hardstanding and access from the road. They did not seek planning permission before doing so. I set out in some detail the sequence of decisions and appeals because it is important for it to be understood how carefully the circumstances of this case and the merits of the residential use at Dale Farm have been considered in the past and how consistently the arguments for the claimants and the travellers on this site have been rejected.
- Basildon District Council served eight enforcement notices in 2002 requiring the removal of the caravans, the hardstanding, the demolition of certain buildings, the levelling of the site and reseeding it with grass. It refused planning permission for 22 residential caravans to be stationed on an area which included a former scrapyard. These enforcement notices and applications covered or related to the area known as the horseshoe, an area on what are now some 40 plots. The decisions were appealed. Two enforcement notices were held to be nullities. All other appeals were dismissed by the Secretary of State as the inspector recommended after a public inquiry. The inspector's report records the cases made by the appellants on the grounds of personal circumstances, including their health needs, the educational needs of their children and the problems which they would face if they were removed because of the lack of alternative sites.
- The inspector concluded that there would be harm to the Green Belt, not just because of inappropriate development but because the site was within a fairly narrow wedge of Green Belt separating Basildon from Wickford and Billericay. The inspector commented in paragraph 229 of the decision letter of 13 May 2003 that:
"Looking first at the harm to the Green Belt, paragraph 3.2 of PPG2 advises that inappropriate development is, by definition, harmful to the Green Belt. In this case, however, the harm is more than that caused only by inappropriateness.
The appeal site is within a fairly narrow wedge of Green Belt that separates Basildon from the two smaller towns of Wickford and Billericay and I agree with the Council that it helps to check the sprawl of these large built-up areas, safeguards the surrounding countryside from further encroachment, and contributes towards preventing other towns from merging into one another."
- The Inspector commented that the very large travellers site had a disproportionate effect on the Green Belt and visual appearance of the area:
"232. The adverse impact upon the Green Belt can be seen at its greatest when all the appeals are considered together. Nevertheless, the development on each of the appeal sites has a significant adverse effect on the openness of the Green Belt ..."
- The inspector then dealt with need in paragraphs 238 to 239. He recorded the acceptance by the Council that there might be an unmet need but it had argued that the Local Plan Review was the appropriate means of considering this. The appellants are recorded as not dissenting from that. The inspector went on to say that the evidence also seemed clear that there were insufficient vacancies on Council-owned sites in Essex to accommodate them:
"Thus, it seems likely that dismissal of the appeals, without any extension of the periods for compliance, would be likely to result in some or all of the families having to resort to unauthorised camping on an itinerant basis, leaving them open to legal action. This undesirable eventuality is therefore something to be weighed in the balance."
Personal circumstances were considered in paragraph 242 in these terms:
"First, there are some adults living on the site who might find it particularly difficult to return to a life on the road and who would therefore benefit from a permanent site. These include single parents, especially single mothers. They also include those with particular health needs that require regular hospital visits or trips to the Doctor [see as examples 96,97,100 and 101]. This is, in my view, an important consideration.
Second, a substantial number of children live on the site and, with a settled base, they would not only have more ready access to health care but would also have an improved opportunity to receive regular, and coherent, school education. This is also an important factor and one to which the Secretary of State accords great weight. Common humanity, let alone the Human Rights Act, and cases determined in relation to Human Rights legislation, to which I do not specifically refer but which I have taken into account, demands that considerable weight be accorded to these factors."
- There were highway safety objections which the inspector upheld. He recommended upholding the enforcement notices but extending time for compliance with them to two years, seeing that as different from the grant of a temporary planning permission. He said in paragraphs 264 and 266:
"264. ... It should not be seen as a green light either for further development on the site or for others to come to the District and to occupy Green Belt sites. These developments in these locations bring with them real problems and, because of the objections and uncertainties that I have identified, it seems to me that it would be wrong to grant planning permission for all or for any of the sites, at least for the time being.
266. As I have already indicated it is, in any event, important not to disrupt the education of the children, or indeed the home life and health care of all the occupiers, beyond that which is necessary. Overall, I consider that a period of compliance of two years would be appropriate."
- The Secretary of State in his decision letter of 13 May 2003 agreed with the inspector's recommendations, saying:
"17. The Secretary of State notes that Basildon District Council accepted that there may be an unmet need for sites in the District and that they are considering this through the Local Plan Review (IR 238). The Secretary of State agrees that the evidence seems clear that there are insufficient vacancies on Council-owned sites. He agrees with the Inspector that dismissal of the appeals without any extension of the periods for compliance, would be likely to result in some or all of the families having to resort to unauthorised camping on an itinerant basis, leaving them open to legal action. The Secretary of State agrees with the Inspector that this undesirable eventuality is something to be weighed in the balance in this case (IR 239).
18. The Secretary of State agrees with the Inspector that the personal circumstances, in particular the need for regular health care and the opportunity for the children to continue their education at local schools should be accorded considerable weight in this case (IR 242).
23. Overall Conclusion
The Secretary of State considers that the development is inappropriate development in the Green Belt and that, in addition to the harm caused by reason of inappropriateness, the developments have significant adverse effect on the openness of the Green Belt, and harm the character of the countryside in the area. He accepts that the shortage of authorised sites and the personal circumstances of the appellants are material considerations which weigh in favour of the proposals, but these need to be balanced against the harm to the Green Belt and the other objections to the proposal in terms of highway safety and regarding the impact on residential amenity. The Secretary of State concludes that the considerations in favour of the proposal do not amount to very special circumstances that would justify allowing inappropriate development in the Green Belt, or would indicate that he should determine the appeals other than in accordance with the development plan."
- Time for complying with the enforcement notices expired on 13 May 2005. The owners have been in occupation in breach of the criminal law, as have their other failures to take the required steps. Two further enforcement notices were re-issued to make good the two nullities. They were the subject matter of appeal and the appeals were dismissed. The period for compliance was also extended to expire on 13 May 2005.
- The site meanwhile continued to grow. Further enforcement notices were served in respect of hardstanding in the middle portion but not appealed. Others were served in respect of what were then 11 plots in the middle portion. These covered the stationing of caravans for residential purposes and hard standing. These were appealed. The appeals were heard at a public inquiry and were dismissed. The Secretary of State in part accepted his inspector's conclusions and recommendations, save that he extended the period for compliance to one year instead of the 18 months as recommended by the inspector. Time for compliance expired on 15 December 2006.
- Thereafter, the owners have been in occupation in breach of the criminal law, and their failure to comply with the requirements in relation to the removal of hardstanding and reseeding is also a criminal offence. Accordingly, by this date almost the whole of Dale Farm had been covered by enforcement notices preventing residential use and the siting of caravans, making this continued act a criminal offence.
- The appellants had put forward their personal circumstances, their desire to settle, their health problems and the education of their children, including the special educational needs of one who was profoundly deaf. A life on the road was said not to be an option for many families because of their medical needs. But their arguments failed.
- It is clear that the inspector in reaching the recommendation upheld by the Secretary of State in that latter case saw the fences and walls, and was aware of them because he referred to them. The inspector took the same view as his predecessor in relation to the harm done to the Green Belt by their use in the middle part of the site, as he set out in paragraphs 162 to 163 of the decision letter of 15 December 2005:
"Even if it is cleared the addition of the appeal sites to the authorised site to the west would have a materially harmful visual impact on the Green Belt and the appearance of the countryside in the locality. It adjoins the rear boundaries of properties in Oak Road and whilst it is currently screened from long distance views from the A127 to the south that will not be the case when the unauthorised development to the west, south and east is removed.
163. The adverse impact on the locality is obviously seen at its greatest if all the plots are looked at as one large site but the mobile homes, touring caravans, hard standing areas, walls, fences and various outbuildings and other paraphernalia found on each plot as well as vehicles on most, results in an unacceptable impact when looking at the plots individually. In any event I agree with the Council that each plot cannot really be looked at in that kind of vacuum and the approval of any plot has serious implications for those adjoining it."
- The inspector also took the view that there was a highway danger from the additional traffic. He dealt with personal circumstances in paragraphs 173 to 175 as follows:
"173. Looking at the personal circumstances of the occupiers of the six plots the subject of these appeals and considering firstly educational needs, no one put forward any evidence or made a claim that any of the children on these six plots who attended school needed any special assistance with their learning. Some were a little behind due to absence from school but there were no other problems.
174. Turning to medical needs various people on these plots suffered from asthma, some had heart and/or kidney problems or angina, two suffered from depression, another had arthritis and one was receiving physiotherapy treatment for a long term back and leg injury. As stated by the Council these are things common to the general population and can be treated at any hospital; there is nothing which can only be treated in the Basildon area.
175. The personal circumstances of these appellants whilst clearly being something in their favour are, in my view, a long way short of constituting very special circumstances and I give them little weight."
- He concluded that it was difficult to argue that there was no unmet need in the Basildon District Council area but said that that did not mean that Dale Farm was the place for that need to be met. The District Council accepted that the position in relation to need weighed in favour of the appellants and that they were unlikely to find any alternative sites in its district:
"182. ... I acknowledge that there is probably an unmet demand for sites and that there is no prospect of an alternative site in Basildon in the near future but any unmet need has not been quantified and these two factors are the only ones that seem to weigh in the appellants' favour and have to be balanced against strong Green Belt and other harm, no personal circumstances that are worthy of any great weight and the fact that an assessment of need is being prepared."
- The inspector also rejected a fallback argument in relation to a small area with a lawful use as a scrapyard. He found the appellants' evidence lacking and did not consider it a material consideration to weigh in favour of the granting of permission for residential caravans.
- The Secretary of State agreed with the inspector in relation to the harm to Green Belt in traffic safety. He said at paragraph 13 in his decision letter of 15 December 2005:
"He further agrees that the addition of the appeal sites to the authorised site to the west would have a materially harmful visual impact on the Green Belt and the appearance of the countryside in the locality. The Secretary of State is mindful that this site performs an important function in separating Basildon from Wickford and Billericay, and in checking the sprawl of built up areas and safeguarding the surrounding countryside from encroachment."
- These were important factors. He disagreed with what the inspector had to say in relation to personal circumstances, since the inspector had concluded that they should be given little weight. The Secretary of State said:
"15. The Secretary of State agrees with the Inspector, for the reasons given in IR 173-175, that the personal circumstances of the appellants do not constitute very special circumstances sufficient to outweigh the harm identified in relation to the development. In reaching this decision he has given significant weight to the educational needs of the children on the six plots. Whilst he agrees with the inspector that none of them require any special assistance, he is mindful of the fact that they are somewhat behind in their schooling, and that dismissal of these appeals would cause further disruption to their education. He therefore disagrees with the Inspector's conclusion that these considerations should be given little weight.
16. The Secretary of State also agrees with the Inspector that the medical needs of some of the appellants are things common to the general population. While he recognises that some of these conditions would benefit from regularised treatment and accordingly given them some weight, he does not give them as much weight as the educational needs identified."
- The Secretary of State recognized that the appellants were unlikely to find sites in Basildon District Council, adding:
"21. However, the Secretary of State agrees with the Inspector in IR 179 that were an assessment, in due course, to require more sites to be provided in the district, the drawbacks of the appeal sites in terms of Green Belt harm and highways objections make it unclear whether they would be considered suitable at that time to meet any duly identified need. This consideration weighs against the appellants.
22. Overall, the Secretary of State has considered the educational and medical needs of the appellants, and their need for a site. He has balanced those factors against the harm to the Green Belt and other identified harm arising from the development. He concludes that those circumstances which weigh in favour of the appellants when considered either individually or cumulatively, are not sufficient to outweigh the harm identified. The Secretary of State therefore concludes that very special circumstances have not been demonstrated in this case."
- He dealt with ground G in paragraph 25, the time for compliance. He said this:
"25. The Secretary of State has carefully considered the educational and health care needs of the appellants and the lack of alternative sites in the area, and has taken into account the effect on those living nearby and the disruption to the appellants who have to move. He disagrees with the Inspector's conclusions in IR 186. He considers that a period of 12 months would allow sufficient time for alternatives to be explored without too much upheaval to the education and healthcare needs of the appellants. In particular, he considers that 12 months would be sufficient to enable the current school year to be completed by those of the appellants' children attending school. He also considers that as the health problems identified by the appellants are not unusual, 12 months would be sufficient to make new arrangements for those cases which benefit from regularised treatment."
- He rejected the contention that a temporary planning permission should be granted. He concluded that the interference with human rights under article 8 of the European Convention on Human Rights was justified in the light of the serious planning objections and the absence of sufficiently clear very special circumstances to outweigh it.
- On 14 June 2005 Basildon District Council resolved to take steps under section 178 in respect of the horseshoe portion of the site, subsequently reconsidering this in January 2006 and December 2007. The reconsideration brought in the later enforcement notices in respect of the middle portions which were challenged in fresh proceedings, but the decision to take action under section 178 was first challenged in action 5225/2005. Further proceedings were started in 2007. The history thus far is set out in paragraphs 2 and 5 of Collins J's judgment in McCarthy and Others v Basildon District Council  EWHC 907 (Admin).
- It is not irrelevant that it is now six years since such a resolution was first lawfully passed. Although it was found unlawful by Collins J in May 2008, because of certain reservations he had about the way material considerations might have been considered, his decision was overturned by the Court of Appeal in January 2009 in Basildon District Council v McCarthy and Others  EWCA (Civ) 13, and permission to appeal further to the House of Lords was refused later that year.
- Meanwhile, in 2005 seven applications for planning permission were made for the retention of caravans and hardstanding for residential purposes on 40 or so plots in the horseshoe area according to paragraph 22 of the decision letter of 21 January 2008; that is to say, planning permission was now being sought to overcome the effect of the enforcement notices which should have been complied with by May 2005. These applications were refused. They went to appeal at a public inquiry in 2006. The inspector records the personal circumstances of the appellants in considerable detail, including particular needs in respect of healthcare and education of those occupying the 40 or so plots. The inspector concluded at paragraphs 177 to 178:
"177. The caravans, mobile homes, utility rooms, boundary walls and roads of Dale Farm cover an area of about 2ha, unrelieved by grass or trees. They can be clearly seen from the A127 and from Oak Lane. They make a significant and harmful impact on the Green Belt's openness, contrary to LP policy BAS S7(ii)(b). Dale Farm stands out starkly as an isolated block of dense development within an environment of open fields and hedges. In my view, the fact that there is another gypsy site on adjoining land merely serves to increase Dale Farm's prominence.
178. To my mind, the fact that there was a lawful scrapyard in the north east corner of Dale Farm should not be a decisive factor when assessing the harm to openness. There is uncertainty about whether the lawful use has lapsed. And, in any case, I consider that the subdivision of the land into separate ownerships makes a resumption of the use unlikely."
- She then dealt with the harm to the openness of the Green Belt. She concluded that there was significant harm to highway safety if Dale Farm continued in use as a residential travellers site, a position not altered by the possible fallback of a scrapyard use on the farm recommencing. She recognized that there were no alternative sites and that the travellers had a cultural aversion to housing in bricks and mortar. She said in respect of personal circumstances:
"199. According to the evidence, there are about 170 residents at Dale Farm, on about 40 plots. The residents' personal circumstances have much in common. In general, they are single mothers, unemployed, unable to read or write, unable to drive or tow a caravan, and they suffer from a dreadful catalogue of health problems, including depression. Their common aim is to settle down long enough for their children to receive an education, and or their healthcare needs to be met. Husbands, partners and fathers were conspicuous by their absence.
200. At the Inquiry, it was not suggested that some appellants had more compelling personal circumstances than others. Nor was it suggested that some appeals should be considered more favourably than others because of the particular personal circumstances of certain appellants.
201. Nevertheless I have not forgotten that the appellants are all individuals, each with their own particular health problems. In some cases, the health problems are extreme. I am particularly concerned about those who need regular monitoring and treatment for on-going medical conditions. If they had to leave Dale Farm, their lives would be much harder. Access to regular healthcare is possible only with a fixed address.
202. Disruption to children's education would cause hardship too; particularly to the children with special needs. However, I am mindful of the exceptionally high absenteeism rate at Crays Hill Primary School (25.8%), for which no explanation was given. It suggests that the appellants' commitment to education is not wholehearted.
203. In my view, the appellants' personal circumstances should be given weight, as in previous appeal decisions."
She continued in relation to human rights:
"204. It is reasonable to assume that if the appeals are dismissed, eviction will follow. There is no certainty of suitable alternative accommodation being readily available. Illegal roadside camping is the most likely outcome for the majority. There would undoubtedly be trauma and serious hardship, especially for the more vulnerable members of the appellants' families. Education and healthcare would be disrupted. Families might have to split up. All of these things would result in interference to home and family life.
205. However, the interference has to be balanced against the harm to the Green Belt, the harm to highway safety and the harm to the rights and freedoms of the settled community in Crays Hill. These harms all have negative effects on the economic well-being of the country; a legitimate aim. Taking everything into account, I consider that dismissal of the appeals is the only way that this legitimate aim can be adequately safeguarded. It is a necessary and proportionate response, and one that would not result in a violation of the appellants' rights under Article 8 of the European Convention on Human Rights.
206. Furthermore, the appellants knew, or could have found out, that Dale Farm was an unauthorised site. And yet they moved there. Some chose to leave bricks and mortar accommodation in Wolverhampton. Others chose to leave an authorised site at Pilgrims Lane in Grays. They have disregarded the recent appeal decisions that require them to vacate Dale Farm. They know that their use of the land is illegal, and yet they remain there.
207. I have considered the possibility of temporary planning permissions, and carried out the same balancing exercise between the interference to the appellants' human rights and the harm that I have identified. The degree of interference would be less, albeit for a short while, but the harms would be the same or more. Experience has shown that temporary planning permissions are seen as a green light for further developments at Dale Farm; developments that exacerbate the harms. There is nothing to suggest that, if temporary planning permissions were granted this time around, things would be any different."
- In her decision she said this by way of summary at paragraphs 211, 212 and 214:
"211. The gypsy sites at Dale Farm are inappropriate development in the Green Belt. The harm to the Green Belt, and other harms, are not outweighed by other considerations. There is no justification for this inappropriate development on the basis of very special circumstances.
212. There are sound and practical reasons for treating all the appeals and all the appellants in the same way. To do otherwise, would send out a fragmented and ambiguous message about the importance of protecting the Green Belt. Furthermore, it would indicate that illegal action can be rewarded by a planning permission; something that the settled community of Crays Hill would, quite reasonably, find hard to accept.
214. I am well aware that, whatever the final outcome of these appeals, there will be an enormous impact on many people's lives. My recommendation that all 7 appeals should be dismissed has not been arrived at lightly."
- She did say that she had approached these matters afresh. Her recommendations were generally accepted by the Secretary of State in the decision letter of 22 February 2007:
"13. PPG2 states that the most important attribute of Green belts is their openness. The Secretary of State agrees with the Inspector, for the reasons set out in IR177, that the caravans, mobile homes, utility rooms, boundary walls and roads on the appeals sites make a significant and harmful impact on the Green Belt's openness. She agrees that this is also contrary to LLP policy BAS S7(ii)(b). Like the inspector, the Secretary of State considers that the fact that there is another gypsy site on adjoining land only increases the prominence of the appeals sites.
14. The Secretary of State considers that the fact that there was a lawful scrapyard in the north east corner of the collective area of the appeals sites should be given very little weight as there is uncertainty about whether the lawful use has lapsed and the subdivision of the land into separate ownerships makes a resumption of the use unlikely."
He did reject her view that there had been significant harm to the residential community.
- The Secretary of State criticised Basildon District Council for failing to prepare a site allocation DPD and agreed that the Council's reluctance to search for new sites weighed in favour of the appellants. The Secretary of State largely agreed with the inspector on the personal circumstances of the appellants but concluded that their health needs and continuity of access to education should carry significant weight, unlike the inspector. She drew no conclusion about the appellants' attitude towards education because she did not know the percentage of children at the Crays Hill Primary School who came from that site. (It is apparent that, certainly by the time of this hearing, there was a high percentage of pupils at that school who were travellers from Oak Lane, the authorised site and Dale farm.)
- The Secretary of State refused to grant temporary planning permission in paragraph 34 of her decision letter, saying that:
"34. In considering whether or not to allow one or more temporary permissions, the Secretary of State has taken account of the evidence provided to the inquiry and that provided after the close of the inquiry. On the basis of all the evidence obtained, including the two letters received from Basildon Council after the close of the inquiry, the Secretary of State is satisfied that the planning circumstances are likely to change within the next 3-4 years.
However, she considers that the harm which each of the appeal proposals causes to the Green Belt and to highway safety is unacceptable, even on a temporary basis. This harm cannot be adequately mitigated by conditions. The Secretary of State has therefore decided not to allow any temporary permissions."
She dealt with human rights as follows:
"35. For the reasons set out in IR204, 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 (IR205) and she further considers that the public interest in pursuing the legitimate aims of Article 8 must include the protection of the environment.
36. As noted at DL 33, the Secretary of State has considered the Inspector's comment at IR207 that temporary planning permissions are seen as a green light for further developments at Dale Farm and she does not share this view. Nevertheless, the Secretary of State does agree with the Inspector that the dismissal of the appeals is a necessary and proportionate response and would not result in a violation of the appellants' rights under Article 8 of the European Convention on Human Rights. Furthermore, she considers that the refusal of temporary planning permission is also a necessary and proportionate response and would not result in a violation of the appellants' rights under Article 8."
- The final decision letter was dated 21 January 2008. It concerned appeals against the refusal of planning permission for a three year temporary permission for several other traveller caravan pitches at Dale Farm. There may be a limited duplication with those the subject matter of the previous decision. However, again, personal circumstances, including the health and educational needs of the appellants, were described. Again, the relationship to others on the site was referred to and the situation in relation to need was described. There were enforcement notices on all but one of the sites the subject matter of the appeal; on that one there was an outstanding appeal. The inspector was aware of the contention that there was a certificate of lawful use on land near but outside the appeal site for a scrapyard purpose. In his report at paragraphs 129 to 130 he said this:
"129. The site lies within a plotland area and there is a scattering of residential development in the vicinity. However, the appearance of the appeal site contrasts significantly with this longstanding development. In the plotlands the built form is generally dominated by the landscape and the dwellings do not generally appear as visually intrusive in the countryside. In stark contrast to this the development on the appeal site appears as a harsh, urban form with the plots and their caravans and mobile homes sited relatively close together. There is no landscaping to relieve the built form; the fences, parking, lighting columns, residential paraphernalia and gravel surfaces all contribute to the harshness of this appearance. Whether taken individually, plot by plot, or taken as a whole, I consider this to be seriously harmful to the character and appearance of the area. In addition, the extent of the built form, the mobile structures and the surfacing all detract significantly from the openness of the Green Belt; paragraph 1.4 of PPG2 advises that the most important attribute of Green Belt is their openness. The development thus conflicts with advice in PPG2 and the provisions of Local Plan Policy BAS BE12.
130. I have taken into account the fact that the appeal site adjoins other traveller encampments. However, the development that wraps around three sides of the appeal site is unauthorised and should be removed. If these other sites are cleared, the appeal site itself would become more visible in the wider landscape. At present it is partly screened from public views from the A127 to the south by the unauthorised development immediately to the south. The removal of that development would open up long views of the appeal site. While the development on this site would still be seen in the context of the authorised traveller plots to the west, I agree with the Secretary of State in her conclusions in respect of the 2007 appeal in which she considered that 'the fact that there is another gypsy site on adjoining land only increases the prominence of the appeal sites'. There is no doubt in my mind that the development now proposed, without the immediately surrounding development, would still be seen as being seriously harmful to the character and appearance of the area."
- There was no quantification of the extent of local need. The inspector said:
"There is no doubt that these appellants have a requirement for a site or sites and that their need is acute as they are under threat of forced eviction. However, there is no evidence to show that the appellants have a need for a site in the Green Belt or within this District."
He continued at paragraph 140:
"The Council considers it highly unlikely that any sites would come forward as part of this process within 3 years; the county council is even less optimistic and considers that sites may be available in 2016. The lack of an agreed quantitative assessment and the lengthy timescale must weigh in favour of the appellants."
In paragraph 141 the inspector said this in relation to alternative sites:
"141. The Council has not suggested any alternative sites for the appellants to resort to if this appeal is dismissed. It has also made it clear that it will pursue its policy of eviction if the judicial review instigated by the travellers is unsuccessful. It is common ground that there are no vacancies on any authorised sites in the District or on any Council-run sites in Essex. In these circumstances the short term alternatives to this site are extremely restricted; the options are limited to roadside camping or temporarily living in houses if homelessness applications are successful."
- Alternative sites were therefore still a long way from fruition. In paragraphs 144 and 145 he considered education and health:
"144. The educational needs of the children on the appeal sites do not differ significantly from the needs considered by the Secretary of State in 2005. There are now 11 children who are at school and most attend the nearby Crays Hill Primary School. Some of the children have learning difficulties; two have a statement of Special Education Needs. There is no evidence to suggest that their education should not be continued elsewhere or that only this school can cater for their needs. The two elder children of Kate O'Brien, however, suffer severe hearing problems and attend special units for hearing impaired pupils at local schools in Rayleigh and Basildon respectively. The needs of all these children were set out in the 2005 Inspector's report and the Secretary of State disagreed with the Inspector's conclusion that these considerations should be given little weight. In my opinion the educational needs of these children is a factor that weighs significantly in the appellants' favour. The children are currently settled at schools and any disruption, especially when the families have no site to move to, would be harmful to their well-being. Having said that, however, I do not agree with the appellants that this would interfere with their human rights. The right to an education would not be removed by their eviction from this site. If the families are re-housed by the Council there is the possibility that they could continue to attend the same schools as at present.
145. With regard to the medical needs of the appellants I accept that it can be very difficult to register with a medical practice if you have no fixed address. Regular access to health care is a benefit that all the appellants currently enjoy. However, none of the appellants have illnesses that are especially unusual or that require them to live on this site. The cited illnesses are all things common to the general population and I give them little weight. Regular access to health care is an advantage of living on this site but is not an unusual circumstance."
At paragraph 149, the overall conclusions were set out:
"149. ... I give very little weight to the former existence of a scrap yard due to the fact that the CLU does not relate to this site, it refers to land to the east; the uncertainty as to whether it could lawfully be recommenced; and due to the subdivision of the land which makes such resumption unlikely. The presence of the nearby authorised and unauthorised gypsy and traveller developments adds to the harm arising from the visual impact. There are views of the development from the A127 and from the southern end of Oak Lane. The mobile homes, caravans, vehicles, fences, external lighting and domestic paraphernalia all contribute to the undesirable urbanisation of this part of the countryside. This is contrary to Policy BAS BE12(i) of the Local Plan."
- He said this in relation to personal circumstances at paragraphs 153 to 154:
"153. With regard to the personal circumstances advanced by and on behalf of the appellants, I consider that the education needs of the children weighs in favour of the appellants. This is particularly the case in respect of this site where children on each plot attend nearby schools. I acknowledge that there is no requirement for the children to attend these particular schools and that they could be educated elsewhere. However, this would lead to their education being disrupted. Concerning the elder children of Kate O'Brien (Plot 30) I note that they have special problems relating to their deafness and that they attend special units attached to their schools. There is no evidence before me to show that this education can only be achieved at these particular schools but it is a matter that gives further weight to their case. The circumstances of these two children were reported by the Inspector in the 2005 Inquiry.
154. Concerning health matters, none of the appellants have health problems that appear significantly out of the ordinary. While regular access of health care facilities is undoubtedly a significant benefit to them, there is no evidence to suggest that only a site in Basildon or in the Green Belt could enable them to receive health care."
At paragraphs 158 to 160 he dealt with human rights:
"158. If this appeal fails and the judicial review favours the Council, it is reasonable to conclude that the Council will take robust action to ensure compliance with the enforcement notices. This will result in the eviction of the appellants. There is no suitable alternative accommodation available although the Council may be able to house the appellants for a temporary period if homelessness applications are made and are successful. The likelihood is that some, if not all, of the appellants will be forced into roadside camping. This would be likely to result in considerable hardship, especially for the more vulnerable appellants. Education would be likely to be disrupted; health care would be more difficult to obtain. Families would be separated. Taken together, these would result in interference to home and family life under Article 8 of the European Convention on Human Rights.
159. This harm must be balanced against the identified harm to the Green Belt, the harm to the character and visual appearance of the area, the harm to highway safety, and the harm to the living conditions of nearby residents. I consider that taken together these identified harmful effects of the development have a negative impact on the economic well-being of the country. The public interest in pursuing the legitimate aims of Article 8 must include the protection of the environment.
160. I consider that the public interest can only be properly safeguarded by the refusal of permission. If it is agreed that there are insufficient other considerations to outweigh the identified harm then I consider that the interference with the appellants' home and family life would not be disproportionate; it would be a necessary and proportionate response."
- The Secretary of State in the decision letter of 21 January 2008 agreed with the inspector's conclusions on education and health, subject to provisos in paragraphs 17, 18 and 21:
"17. For the reasons set out at IR144, the Secretary of State agrees with the Inspector's conclusion that disruption to the children's education, especially when the families have no site to move to, would be harmful to their well-being, and that the children's educational needs is a factor that weighs significantly in the appellants' favour. The Secretary of State does not, however, consider that the children would be deprived of education contrary to Article 2 of the First Protocol of the ECHR nor that there would be discrimination contrary to Article 14. The Inspector considers at IR145 that the illnesses from which some of the appellants suffer are all things common to the general population. The Secretary of State considers that it is the severity of illnesses and the particular associated medical needs that are relevant, rather than their commonness, but agrees with the Inspector's conclusion that none of the appellants have illnesses that require them to live on this site, and that there is no evidence to suggest that only a site in Basildon or in the Green Belt could enable them to receive health care (IR 145). Accordingly, she gives health considerations limited weight.
18. The Secretary of State has considered whether the other matters put forward at IR 155, to the extent to which they are not already covered above, should weigh in favour of the development. She considers that whilst Government policy seeks to encourage gypsies and travellers to provide and manage their own sites, it does not encourage the establishment of private sites which are unacceptable in planning terms, and she therefore gives this no weight. She has also considered the assertion that the only realistic areas for gypsies and travellers in Basildon District are within the Green Belt and that the likelihood of finding acceptable alternative sites in the vicinity is limited due to the extent of the Green Belt. However, she considers that the extent of the Green Belt, and the consequent potential difficulty in finding acceptable locations for sites in the vicinity, does not make this particular Green Belt site any more acceptable, and therefore gives this little weight.
21. The Secretary of State has taken into consideration the advice in Circular 11/95 and Circular 01/06 on temporary permissions, and the fact that the appellants are only seeking a temporary planning permission for a period of three years. She agrees with the Inspector's conclusion at IR157 that the development is causing unacceptable harm to amenity, which cannot be overcome by conditions. She further agrees that it is unlikely that the situation regarding alternative sites will be significantly different in three years."
I note the comment in paragraph 21 about unacceptable harm to amenity.
- No legal challenge was ever brought to those decisions. I have already alluded to the ultimately unsuccessful challenges to the decisions taken by the Council in 2005, 2006 and 2007 to take action under section 178 in respect of the enforcement notices effective on this site at Dale Farm and on other sites. I think it important to note what was said in respect of those challenges brought on behalf of a large number of Dale Farm plot owners, again, making points which are good or bad in respect of all those at Dale Farm acting in defiance of criminal law.
- Collins J in 2008, whilst recognizing the importance of compliance with the criminal law, had reservations about the lawfulness of certain aspects of the Council's decisions. However, he made clear that…
"…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."
He said at paragraphs 65 to 67:
"65. Despite the difficulties they face and the absence at present of sufficient sites to meet their needs, travellers and gypsies must appreciate 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 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."
- The Court of Appeal in January 2009 rejected each of those reservations and upheld the District Council's decisions. It noted what Mr Luba QC said on behalf of the claimants at paragraph 7 as follows:
"For the claimants, Mr Luba accepts that the claimants have reached the end of the road in their attempts to regularise their position by obtaining planning permission or temporary planning permission. That has been considered on a plot by plot basis. The extreme difficulty involved in obtaining planning permission for caravan and trailer sites in the Green Belt is acknowledged. Mr Luba accepts that the claimants are on the land unlawfully and that, even if the appeal is dismissed, they will still be on land unlawfully. He accepts that the most recent planning decisions of the Secretary of State reflect the planning situation. He accepts that the Council could lawfully evict each and every one of the claimants provided they lawfully and appropriately direct themselves. His submission is that the judge was correct to hold that the decision of 13 December 2007 should be quashed because all relevant matters had not been properly taken into account by the Council."
- In reality, Basildon District Council ought to have been able to take section 178 action on each of those decisions some years ago. It ought not to have been prevented from doing so by the decision of Collins J. In many respects the arguments here are echoes of those that failed on not significantly different facts or were available to be taken in respect of those earlier decisions but which were not taken. Whether that constitutes an abuse of process is a matter I shall have to consider later.
- However, I emphasise that history for a variety of reasons. The public should be aware that the situation of travellers on this site generally, and the position of individual travellers, has been carefully considered through the planning process on a number of occasions, when the general and individual needs of the site occupants were considered. The harm done to the Green Belt and the impact on highway safety has been balanced against the individual circumstances, educational and health needs and the human rights of the appellants which have always been raised and have always been carefully considered. That process has included almost invariably public inquiries, detailed and careful inspector's reports, recommendations to the Secretary of State which in essence have always been accepted, and there have been no legal challenges to those decisions. Those decisions only ever granted time for compliance with the enforcement notice. No decision granted even a temporary planning permission for one caravan to remain.
- The fact that the enforcement notices have not struck at all the caravans is not deliberate. This section 178 action may not be effective against a few but that is not a consequence of a deliberate planning decision. Those planning decisions, and in particular the enforcement notice decisions, were made in the light of the knowledge that travellers would have to leave the site with no alternative sites lawfully to go to, and so would have to camp on the roadside or go to bricks and mortar accommodation provided to the homeless by the district council and to which they have a cultural aversion. But the decision that they should leave has been reached on each occasion because of the significant planning harm which their presence creates at Dale Farm.
- In at least some of the decisions the Secretary of State has been critical of the District Council's approach to the provision of gypsy and traveller sites in the area, but nonetheless has upheld the enforcement notices and refused planning permission. Dale Farm is not a site which would obtain planning permission for such a use even if other sites might. Time was extended for compliance with the enforcement notices to enable a departure from the site of the caravans on a voluntary basis and within a timeframe of the residents' choosing, then removing the hardstanding and reseeding the ground.
- Since May 2005 in most cases, and December 2006 in others, when time for compliance expired, the owners have been daily committing criminal offences in not complying with the requirements of the law. There has been no endeavour to remove themselves. Basildon District Council's decision has to be seen as an attempt to deal with persistent and longstanding breaches of the criminal law on a large scale. As the Court of Appeal found in 2009, it should not have been prevented from taking these steps under section 178 to secure compliance from 2005 onwards. It is not a defence to such a criminal activity that no alternative caravan site has been provided by Basildon District Council for their lawful occupation, nor was the existence of such one or more sites ever a prerequisite for upholding the enforcement notices requiring their removal, nor was it ever the case that the best interests of a child permitted them to stay in defiance of the criminal law.
- I wish to make it clear, in the light of Mr Harwood's submissions, though not those of Mr Willers or Mr Jacobs, that the planning history shows there not to be the slightest prospect of a planning permission or a temporary planning permission being granted on this site for gypsy or traveller caravans, either by Basildon District Council or by the Secretary of State.
- It is against that background that I turn to the decisions made by Basildon District Council following the Court of Appeal's decision and the refusal of permission to appeal to the House of Lords.
The Council's Decisions
- On 17 May 2011 Basildon District Council's Development Control and Traffic Management Committee considered an Officer's Report updating the members on the current enforcement position. The committee resolved as follows:
That the Council, having regard to the updated information presented to the Committee, gives delegated authority to the Solicitor to the Council acting in consultation with the Head of Corporate Services, to take such action as is deemed necessary in order to allow the Council, pursuant to section 178 of the Town and Country Planning Act 1990, to secure compliance with enforcement notices in respect of the unauthorised sites at Dale Farm, Crays Hill, Billericay."
- This is plainly the principal decision at issue. The Officer's Report set out changes in policy, human rights and equality legislation, and personal circumstances which required to be reconsidered since the issue had last been considered in June 2007. The Council was reminded of the need to balance the public interest in securing the removal of development in breach of the criminal law against personal circumstances, so far as relevant, and the hardship which this action would cause. Previous Council reports setting out the history were attached. What Collins J said in McCarthy in 2008, as I have already referred to, was set out, as was the decision of the Court of Appeal. It had held that the Council had properly considered the individual needs of each claimant and that there was no duty on the District Council to await the conclusion of any homelessness application before taking direct action. The District Council reaffirmed its intention to make offers of appropriate alternative accommodation, though it is clear that that is bricks and mortar accommodation.
- The evolution of planning policy in relation to gypsies and travellers, including the intended replacement of Circular 1/06, was referred to; the way in which the convolutions of the existence of the Regional Spacial Strategy became controversial in argument. Policy H3 required the District Council to provide an additional 62 pitches by 2O11 through development control or DPDs. At that stage and before the Court of Appeal decision in Cala Homes, the government's purported revocation of the RSS by letter had been found unlawful, but its intention to legislate in the Localism Bill remained. The weight to be given to it was therefore diminishing according to the report. The District Council had withdrawn its legal challenge to H3 because of the announced revocation of the Strategy. The report said that the District Council had to have regard to the RSS in determining whether to take enforcement action and to the intention to abolish it, leaving the Council to determine the extent of the need to be met and where. It would await new national policy before reaching decisions on that.
- The report referred to the Secretary of State's consideration of personal circumstances and the health and educational needs of occupiers as updated. The District Council had hand delivered questionnaires and explanatory letters to each pitch at Dale Farm with copies to the appointed legal representatives. Information on personal circumstances in respect of 34 pitches was returned. A further nine were at the time vacant. Members were also asked to consider the material on personal circumstances available in 2007. They were told that they had fully to evaluate:
"The current circumstances relevant to the occupiers of each individual pitch on an individual basis. Members must consider whether any particular individual's circumstances are such as to outweigh the harm identified above. If it is, then it would not be proportionate to take enforcement action against that individual."
- The need for further gypsy sites in Basildon was a vexed issue. 118 out of 310 caravans were on unauthorised sites. The report described the Secretary of State's approach to need in the decision letters and said that he recognized the argument from the Council that it had already catered disproportionately for gypsies and travellers because of the history of small plotlands. It recognized that this argument had been rejected in RSS Policy H3. The District Council was working on a Core Strategy which would deal with its preferred approach in September 2011. (That has not yet been published). The report quoted a letter from the Secretary of State saying that local authorities should assess need through DPDs but that a gypsy and traveller accommodation assessment, a GTAA, had been undertaken by all local authorities. This also gave rise to an issue in the case. (The Localism Bill, the enactment of which was then expected in the autumn, is currently in the House of Lords report stage). The Secretary of State's refusal of any temporary planning permission was noted, as was the various conclusions on human rights in the decision letters.
- Personal circumstances were dealt with as follows:
"The personal circumstances included in Part II of this report, have been compiled from information the Council has received from both the Travellers and their legal representatives. The Council has no reason to believe that those circumstances relied upon in August 2006 and October 2007 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 and the previous decisions of the DCTM Committee.
The purpose of this report is to inform and assist members in deciding upon what if any enforcement action should be taken to achieve compliance with the extant enforcement notices. The decision maker should whilst undertaking the balancing exercise 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 possibly 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 would 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 illegally on land either in private or public ownership, or the roadside.
In reaching any decision in respect of obtaining compliance with the extant Enforcement Notices, the decision maker is reminded that the Secretary of State has on four separate occasions since May 2003 considered the planning merits. On each occasion planning permission both permanent and temporary has been refused resulting in the upholding of the Council's Enforcement Notices."
- The report reiterated that the fact that homelessness applications had been made and some accepted by the Council, and offers had been made but not taken up, did not mean that it had to wait before taking s178 action. The report expressed the view that, in the light of the previous decisions, there was little prospect of any planning permission, permanent or temporary, being granted on appeal in respect of Dale Farm were any applications to be made.
- The report then analysed the discretion in a way which has given rise to no direct legal challenge. The report next commented on negotiations in a way which did give rise to challenge as follows:
"Where the Local Planning Authority's initial attempt to achieve a voluntary remedy fails, negotiations should not be allowed to delay whatever formal enforcement action may be required to make the development acceptable on planning grounds, or to compel it to stop."
The conclusions of the report reiterate at page 45:
"Clearly the continued use of the land for residential purposes involving the stationing of static and touring caravans, portable utility structures and the formation of hardstandings on the land is in flagrant breach of valid enforcement notices. It constitutes a criminal offence. The development is without doubt inappropriate within the Green Belt, which is a consideration that should be given substantial weight.
The Secretary of State has concluded on four separate occasions that the development causes significant harm to the Green Belt and that other harm exists, including harm to highway safety resulting from the limitations of the highway network in the locality of Dale Farm. The issue of need and the personal circumstances of the occupiers has been considered by the Secretary of State in each of the four appeal decision letters.
The Secretary of State has in each decision concluded that need and personal circumstances did not outweigh the identified harm. It therefore follows that all appeals lodged against the Council's valid Enforcement Notices and refusals to grant planning permission both permanent and temporary have been dismissed. The planning process has now been exhausted as counsel for the occupiers accepted in the Court of Appeal proceedings. There is very little prospect of success in respect of the grant of planning permission on appeal.
The key issues for Members to weigh in the balancing exercise to be undertaken is whether the impact of taking action to secure compliance with the extant Enforcement Notices on the occupiers of Dale Farm 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. They should proceed on the assumption that if compliance with the enforcement notices is achieved some of the occupiers will most likely resort to camping at unauthorised locations, including on the roadside. In this case, it is likely that for some travellers this will involve moving from place to place (including in some cases being forced to move) on a frequent basis. If Members conclude that the circumstances of the occupiers, and the hardship likely to be 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 extant Enforcement Notices."
- The annexed Service Impact Assessment dealt with a variety of ways in which the adverse impact of removal would be mitigated, including continued close work with the Essex County Council and the local Primary Care Trust to meet the needs of those of school age, younger children and older occupants. A variety of other steps in planning the operation and co-ordinating with other local authorities and state services were discussed and working with the Children's Commission and the EHRC were also described. At the meeting itself, the Minutes record the committee being alerted to two recent planning applications to which I shall come, being told:
"The travellers' representatives had raised the specific issue of alternative sites and Members were advised that it would only be lawful for the Committee to authorise enforcement action where it was proportionate to do so. The committee would need to be satisfied that alternative sites were not likely to be available within a reasonable period. In this regard the Manager of Planning Services advised the Committee of two recently submitted planning applications."
Personal circumstances were considered with schedules of information supplied by travellers and their representatives even up to the last minute, despite the deadline set in the questionnaire. The information included a long letter dated 13 May 2011.
- Following the resolution which authorised the taking of action under section 178, between 30 June and 4 July 2011, and once the policing costs had been referred to the Council, officers decided to issue a non-statutory and inaccurately so-called 28 day notice letter to occupiers of Dale Farm informing them that if they had not vacated their plots by the end of 31 August 2011, the Council would enter the land during September 2011 and take the steps necessary to secure compliance with the enforcement notices, spelling out what those would be in general terms. It informed them how to make homelessness applications and who to contact in respect of various health and educational services.
- On 2 August 2011 the Development Control Committee met again to consider fresh information in respect of personal circumstances provided in respect of eight plots after the 17 May 2011 meeting. The new information was set out. The Service Impact Assessment was updated, and as on the previous occasion these were considered in a closed session because of the personal nature of the information.
- On the same day the committee was referred to two planning applications which had been made in respect of land owned by the Homes and Community Agency, the HCA, by the Gypsy Council and the DFHA, the unincorporated association comprising the claimants in action 9515/2011. The HCA owns a lot of land around Basildon as a former new town. The HCA did not oppose either of these applications. Gardiners Close was an application for 10 temporary gypsy pitches. (The application has been rejected twice as invalid and even as of now no valid application has been made). The Church Road application, to which the report of 2 August 2011 referred, related to 12 pitches and was refused at that meeting. No personal circumstances were referred to in support of the application. It was refused because the site was a nationally recognized site of wildlife importance. The application was supported by an inadequate ecological survey. The site was designated for leisure and recreation uses and it was thought there would be harm to the overall appearance of the area. Natural England objected to the development. An appeal against that refusal of planning permission is due to be heard at an inquiry on 22 November, with the decision not expected until January 2012. In respect of the other issue before the committee on 2 August 2011 it decided in respect of the plots it considered to affirm the decision that it had reached on 17 May.
- On 5 September 2011 the Council again wrote to the occupiers specifying that the already foreshadowed September site clearance would take place during the week commencing 19 September 2011. It provided relevant contact details and was more specific about how water and electricity would be dealt with during and after clearance, how property would be stored and urging consideration by the occupants of availing themselves of the housing accommodation to which they would be entitled under the Housing Act. A further letter of 13 September 2011 set out more detail about how the operation would be conducted.
- After the decision of 2 August 2011 the Dale Farm site occupiers continued to send in to the Council further information in respect of personal circumstances. Mary Flynn, the mother of the claimant in the action before Kenneth Parker J, supplied medical evidence further to that supplied by her and considered on 2 August. She did so on 24 and 31 August. A planning application on her plot, plot 45, was also made. This further material elaborates the medical condition previously considered but included a hospital and medical report. I shall turn to plot 45 later. She needed a nebulizer as part of her regular medication. The Council reported that it would be able to ensure that she had a battery operated one, as could anyone on Dale Farm who needed one. Arrangements for continuity of medical care could be made.
- Having considered this material, the Council decided on 7 September, through the delegated process resolved on 2 August 2011 for this specific purpose, to continue with the action under section 178 as it affected her plot in relation to hardstanding. After considering the detailed report and all the relevant issues, including the absence of any prospects of success for her planning application, the direct action in relation to that was affirmed.
- On 13 September 2011, using the same delegated powers, the Council affirmed the decision to proceed in respect of plot 49 occupied by Mr Cornelius Sheridan who had supplied information of his medical circumstances on 2 August but too late for consideration at that meeting. Dr Smith, a sociologist, provided information dated 20 August 2011 on the personal circumstances of the claimants, and Dr Arnold for Medical Justice on 12 September provided a report covering five residents, including Mr Cornelius Sheridan. It said that he had acute health needs, had two life threatening diagnoses and needed mains electricity for his nebulizer which he used five or six times a day. He needed constant care from a neighbour who slept in the same room as he did. On 15 September Dr Arnold furnished a further report in response to the Council's comments on the six individuals, including two not previously covered by him.
- On 21 September 2011 and using the same process, the District Council's officers reported the planning history, old and new material, commented on it, and the Council's decision to proceed in respect of the affected plots was maintained. In respect of five and possibly six no information had been supplied in response to the letter, the questionnaire, nor via representatives until 12 September at the earliest.
- It is worth noting that the Council's report in relation to personal circumstances was sent to the individual representatives for them to comment on. Their comments were incorporated into the actual reports which officers considered.
- It is not necessary to go through all the medical and personal and family circumstances. None are trivial. All are sufficiently serious to require careful consideration. The degree of care which many receive from within the interrelated community of Dale Farm is clear from a further report of 22 September, dealing with three whose circumstances were not previously raised and referring to others who are potentially vulnerable. I have a schedule showing how many are cared for by somebody living on the same plot as the person needing care or another one.
The Current Proceedings
- I turn to the three cases before me. Proceedings in CO/9092/2011 were launched on behalf of Mary Sheridan on 22 September 2011. The decision formally challenged is said to be a decision on about 4 July to take direct action and to issue the 28 day notice. The claim seeks the quashing of the decision to take direct action "at this point of time" as disproportionate and unlawful. An injunction was sought preventing direct action until the claimants were provided with suitable alternative accommodation. An order was sought requiring "a proper assessment of the accommodation needs of all residents on the site and devising a strategy under section 225 of the Housing Act 2004 to meet those needs". Mr Willers confirmed orally that he was also challenging the decision of 17 May 2011. No extension of time to do so was sought and no evidence to justify the extension was submitted.
- Mr Willers contended that the decision to proceed with direct action constituted a breach of Article 8 of the ECHR because it was disproportionate. He contended that, in the absence of alternative sites, a failure to act by the District Council to supply alternatives, and the interference with Article 8 rights by virtue of action under section 178 made action disproportionate until suitable alternative accommodation was available. The detailed grounds, however, and his skeleton argument challenge decisions of the Council on the 7, 13, 21 and 22 September in relation to the decisions taken in relation to the personal circumstances of individuals.
- Proceedings in CO/9115/2011 were lodged on behalf of 11 other occupiers on 23 September 2011 purporting to challenge a decision of 22 September 2011 refusing to stay action under section 178 until the outcome of the planning inquiry into the appeal in respect of 12 travellers' pitches at Church Road and the application for 12 to 15 pitches at Gardiner Lane South. The decision referred to was made in response to the pre-action protocol letter which pointed out various limitations in the two applications for permission and the prospects of them providing for some or all of the Dale Farm residents. This refusal to stay section 178 action was said to be unreasonable and disproportionate because of its effect on the education of children, its inconsistency with the duty to act in the best interests of the child, the exposure of parents to prosecution for their non-attendance and for inhabiting the roadside contrary to section 137 of the Highways Act 1980 or trespassing in insanitary supermarket car parks, and becuase they would be homeless without suitable alternative accommodation. Bricks and mortar accommodation did not constitute suitable accommodation. The District Council had not complied with section 255 of the Housing Act 2004, nor with policy H3 of the RSS. Forcible eviction would be unjustifiable and would be undignified when the claimants were willing to go if lawful sites were found. No public sector equality duty impact assessment had been carried out. There was, it was said, a reasonable prospect of a suitable alternative site being found in a reasonable time, through the applications made in various other proceedings.
- Mr Harwood dealt with 9136 in which proceedings commenced on 28 September 2011, expressly challenged the decisions of 17 May and 2 August 2011. No extension of time was sought and no explanation for the delay was given. As with the other actions, the points included the claimant's interests but affected all pitches. Mr Harwood made five submissions. First, the District Council had failed to consider the extent to which direct action under section 178 would not achieve the removal of all the hardstanding, caravans, buildings, walls and fences, and so did not consider the true limits on the real benefits of direct action, which he said was a material consideration. This would also be relevant to proportionality. Secondly, the District Council had erred in law in considering the lawful scrapyard use. This could be resumed by virtue of section 57(4) of the 1990 Act, once the unlawful users were removed, as a previous lawful use. Similarly, it had failed to consider the true limits on the benefits of direct action. Third, it had ignored the option of a negotiated settlement and the history of negotiations. Fourth, it had failed to consider the weight required in law to be given to the RSS requirement on Basildon to provide 62 pitches by 2011 in the light of the Court of Appeal decision in R (Cala Homes (South) Limited) v Secretary of State for Communities and Local Government  EWCA (Civ) 1600, and in the light of the uncertainties of the timescale for enacting the Localism Bill which would, if the proposal were to proceed, also require it to pass through a strategic environmental assessment before the RSS could be effectively abolished. Fifthly, the Council had failed to consider the implications of the decision by the Secretary of State to grant permission for a single gypsy pitch at Windsor Lodge in this area. Sixth, it had failed to consider whether an environmental impact assessment was required in respect of the proposed direct action.
- I start with delay because this is the first issue in response raised by the District Council. Application CO/9136/2011 challenges the decision of 17 May 2011. CO/9098/2011 does not. Mr Willers accepted in argument that he had to challenge that decision without making a formal amendment. CO/9115/2011 does not in terms seek to do so, though the nature of Mr Jacobs' argument could scarce avoid doing so. In reality, each case involves a challenge to the decision of 17 May 2011. No proceedings were brought within three months of that decision. No extension of time was sought. No explanation has been given beyond that one individual had tried unsuccessfully to bring a direct human rights challenge within three months. I am not prepared on that basis to extend time to enable a challenge to be brought to the decision of 17 May 2011. I refuse permission for a challenge to be made to it.
- There has been previous litigation in 2005, 2007 and 2009 about just such a decision between essentially the same parties. The claimants were well aware that such a decision was being taken because they were asked for information about their personal circumstances about a month before it was taken. They then received letters at the start of July telling them what was to come. The effect of that is that the decision of 17th May 2011 is not challengeable and is to be taken as lawful.
- The claimants sought to say that it was not itself a decision to take direct action. It was a decision to delegate the power to officers to take action under section 178. In support of this surprising submission they rely upon a comment of Lloyd LJ in the Court of Appeal in the McCarthy case at paragraph 79:
"79. The decision was that officers should be authorised to take such action as was deemed necessary to allow the council to secure compliance with the enforcement notices, under section 178. It was not a decision as to what action should be taken, or when."
- The claimants say that there must have been a subsequent decision, for example, just before 4 July, to issue the so- called 28 day notice and there were subsequent decisions in August and September which they can challenge because, likewise, the 17 May decision was not as to what action should be taken or when. The claimants in my judgment read far too much into that comment of Lloyd LJ. It was clear in May and now that the decision to use section 178 to achieve compliance was made in May 2011. It was the same composite decision as was the subject of the judicial review proceedings brought in 2005 and 2006 and 2007. Such a decision was necessary to achieve the removal of the caravans and hard standing. All that the decision left undecided was about the mechanics, the complex operation which then had to follow and precisely when the action would be taken, but there could be no doubt, that as from 17 May 2011, action under section 178 would be taken.
- There could also be no doubt, as the council proceeded to get the mechanics for implementing that decision sorted out, that it would be incurring considerable expenditure in so doing. I accept its evidence that it has incurred some £400,000, part of which would have been incurred by the stay granted at the last minute.
- There can be no doubt that the decision of 17 May was the one which committed the Council to taking action under section 178, having already considered the arguments in relation to need and personal circumstances on the information provided to it following its request. It is not a decision permitting officers to negotiate a settlement, or to delay removal until suitable alternative accommodation has been found, or until some planning application has been resolved. It was a decision to take action under section 178 and to enable the mechanics and precise timing to be dealt with at a lower level. Accordingly, a challenge to any subsequent decision must be approached on the basis that the 17th May decision is a lawful decision.
- Although I go on to consider the merits of the challenges to be made, once it is recognized that the decision of 17 May is lawful, it is difficult to see what basis there can be for a challenge to the subsequent decisions, except where they rely either on changes in circumstances or new information that has been provided in respect of personal circumstances. Most of the arguments fall away. I reject the contention underlying part of Mr Jacobs' case, that the refusal to agree a request to stay action under section 178 permits a broader challenge to the 17 May decision. That would simply be to enable any refusal to alter a decision before it was carried out to be treated as a fresh decision enabling time to start running again, defeating the clear statutory purpose of section 31(6) of the Senior Courts Act 1981. Nor was there, as it was put in action CO/9098/2011, a separate decision to proceed on 4 July, permitting the whole of the 17 May decision to be opened up by a challenge within three months of 4 July. The 17 May decision cannot be treated as a continuing decision merely because it is awaiting execution, with any challenge being treated as prompt provided it occurs before the decision has been executed.
- Alternatively, insofar as a party seeks to bring a challenge to the 17 May decision through the medium of the 4th July letter or to challenge the 4 July letter, the claims are not made promptly even if made within the three months. There is no explanation, let alone a satisfactory one, for that delay. Again, I refuse permission to challenge the decision of 4 July, not merely on delay grounds but because it is a mischaracterisation of the decision. It is simply the outcome of the 17 May decision.
- Mr Willers knew that the 17 May decision had to be challenged because, rightly, he answered that he accepted that that decision was part of their challenge, though not actually said to be one, challenged in the claim form. Mr Harwood did challenge it. There is no independent ground for challenging the decision of 4 July beyond grounds which go entirely to the 17 May decision.
- The issuing of a further letter on 5 September is not a further decision. It is merely firming up a date in September for removal within the timeframe already foreshadowed. Nonetheless, it remains astonishing that even if legal proceedings were not in train by 4th July or soon thereafter, the proceedings were not immediately issued after 5 September. It was left almost until the day of removal before interim relief was sought.
- I accept that the proceedings were brought within three months of the decision of 2 August but, given the 17 May decision and the letter of 4 July, it is impossible to conclude that the proceedings were brought promptly in relation to a challenge to the decision on 2 August. There is nothing but delay without explanation for the last minute challenges that were made. Even if the challenge to the 2 August decision had been sufficiently prompt, it would not permit a broad challenge on all the grounds relevant to the 17 May decision. The 2 August decision involved seven pitches and particular circumstances, with other fresh information in relation to those being received. It can be contended as well that there had been changes in the Windsor Lodge decision and in the weight to be given to the RSS in the light of the Court of Appeal decision in Cala Homes, which were not considered either in relation to the seven pitches or more generally. I shall deal with that on its merits. The challenge has still come too late and they are not prompt in relation to that decision.
There was no separate decision on 22 September in response to a pre -action protocol.
- The consideration of further individual material, much but by no means all provided at the last minute when it would have been obtainable much earlier, led to the delegated decisions on 7, 13, 21 and 22 September. The claim forms do not include these as decisions that are formally challenged. None of the material appears to relate to changes in circumstances after 17 May, 4 July or even the 2 August, and no explanation as to why it was not said earlier has been provided. I am prepared to assume that the provision of that further information can generate further challengeable decisions in September, challenging the proportionality of the ensuing decisions that, in the light of that material, removal should not proceed but I do not feel that the last minute nature of it can be ignored in the proportionality challenge.
- The only ones which are not ruled out by virtue of delay or want of promptness in my judgment are decisions which are based upon a change of circumstance after 2 August, and the September decisions in respect of new information which was tendered for consideration. That related to personal circumstances.
Abuse of Process
- I would add at this stage that I have some sympathy for the District Council's argument that parts of the argument are an abuse of process because they arose equally in respect of the earlier litigation but were not taken. This includes the duty under section 11 of the Children Act, but I do not think that that argument is correct. There was undoubtedly a fresh decision taken on 17 May. It is for the District Council to take it lawfully. If the error is not spotted at an earlier stage it does not make it lawful for the Council to repeat the error in a later decision. It is not for the claimants to correct the errors or forever forego the right to point them out when an effective decision affecting them is made. I reject the Council's abuse argument.
- Mr Willers and Mr Jacobs contended that there was a realistic prospect of permission being granted on Church Road with a potential for Dale Farm users to occupy it. The HCA as owner had offered it as suitable for a travellers' site. They had been in discussion with the Dale Farm Housing Association and were willing, as it said in its letter of 27 July, to discuss with the Council any site it held in Basildon as an option for a temporary or permanent site for the Dale Farm travellers. It would be pleased to consider funding the physical infrastructure. This was confirmed in its letter of 31 August to the local MEP. If formally requested to do so by the local authority it would consider positively supporting the applications. In addition, Natural England had now withdrawn its objection. (The District Council disputed that). There had also been, it was said, no assessment by the District Council of the prospects of success on appeal.
- Mr Puxon in CO/9115/2011, the secretary of the DFHA, saw the two applications as together providing for 40 pitches, containing a mobile home or chalet plus a living in or touring caravan. Some trailers could be temporarily put on temporarily vacant authorised sites. Other temporary but not authorised sites could be made available. His evidence also showed that there had been discussions about alternative sites between the DFHA, the Council and the HCA in 2009 leading up to October 2010. This had been with a view to a voluntary withdrawal from Dale Farm and the occupation of alternative sites. These had broken down over what the District Council saw as a breach of the agreed confidentiality. The District Council had been clear that the eviction would eventually proceed and that no single 60 pitch site was ever likely to be found. (I accept that government guidance still favour sites no greater than 50 pitches). The District Council had been clear that finding a site or sites would have to go through the DPD process and it had refused to permit doubling up of numbers on the authorised Oak Lane site. The onus, it contended, was not on it to find sites.
- Mr Puxon contended, that the two sites if granted permission, could be extended, the pitches could at least be temporarily be used for more than one family, perhaps even three families, and so all or a significant proportion of the Dale Farm families currently there could be found alternative accommodation within what was hoped to be a reasonable time and with a fair wind.
- Mr Harwood's submissions in respect of the Windsor Lodge decision letter are relevant here. It is dated 22 July 2011. The inspector rejected the District Council's position on RSS, placing substantial weight on policy H3 with the GTAA as the best evidence of the degree of need, along with the number of unauthorised sites evidencing how immediate it was. The District Council had failed to make proper provision. This was relevant and ought to have been but was not considered in the decision of 2 August 2011. It clearly added to the prospects of success for travellers on the sites and, submitted Mr Harwood, on Dale Farm.
- I turn now to introduce the ground that relates to section 255 of the Housing Act 2004. This provides as follows:
"(1) Every local housing authority must, when undertaking a review of housing needs in their district under section 8 of the Housing Act 1985 (c.68), carry out an assessment of the accommodation needs of gypsies and travellers residing in or resorting to their district.
(2) Subsection (3) applies where a local housing authority are required under section 87 of the Local Government Act 2003 (c.26) to prepare a strategy in respect of the meeting of such accommodation needs.
(3) The local authority who are that local housing authority must take the strategy into account in exercising their functions.
'Functions' includes functions exercisable otherwise than as a local housing authority."
- There is no doubt that subsection (3) applies in this case. The Secretary of State's letter to the EHRC recorded that all local authorities had completed the required GTAA. Basildon's was included in the Essex GTAA, republished in 2009 with a figure of 67 additional pitches required in 2009. Mr Willier contended that because that figure was disputed by Basildon it had no GTAA, or none prepared in a way from which a strategy could be developed, or it had prepared no strategy to meet whatever needs existed, in breach of its duty under subsection (2). Had the duty been met, the needs of Dale Farm would have been included in the needs which a strategy would have been devised to accommodate. This went to the proportionality of removal at this stage.
- He contended that action under section 178 was further disproportionate because the RSS requirement had not been complied with. It had been in draft and hence of debatable force at the time of the decision in McCarthy in the Court of Appeal.
- Mr Jacobs' skeleton argument also relied on this, pointing out how in circular 1/06 GTAA were to be fed into the RSS. The circular was intended to help to avoid gypsies and travellers becoming homeless through eviction from one unauthorised site without an alternative to go to. Policy H3 contemplated site provision, not only through the DPD system but also through development control. Circular 1/06 pointed out that local authorities were expected to take swift action to remedy a shortfall. All advocates for claimants pointed to the effect of the Court of Appeal decision in Cala Homes, arguing that the report of 17 May did not foreshadow the approach that the Court of Appeal enjoined; and subsequent reports did not consider or reflect what it said about the weight required in law still to be given to the RSS in the judgment of Sullivan LJ at paragraph 33. I summarise. While there be might be circumstances in which potential abolition could be given significant weight they would probably be unusual and would require clear and specific reasoning, otherwise rationally significant weight still had to be attached to the continuing RSS.
- Although the claimant in CO/9098/2011 had her own personal interest, her claim relied on the evidence of the medical practitioners, those to whom I have referred, and the educational needs of a large number of children on Dale Farm. The claimant said that the decision was perverse or disproportionate. Mr Willers emphasised that he was not saying that removal should never take place, only that it should be postponed until suitable alternative pitches were available. It was perverse for removal to take place where the Council had requested medical examinations which had not yet taken place.
- Mr Willers relied on a number of international conventions which I do not think advance the matter. He then relied on Article 3.1 of the Convention on the Rights of a Child 1989, given effect in domestic law by section 11 of the Children Act 2004 as amended in May 2010, not affecting the Secretary of State as such. Section 11(2) of the Children Act 2004 reads as follows:
"(2) Each person and body to whom this section applies must make arrangements for ensuring that -
(a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and
(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need."
- Statutory guidance issued under section 11(4) did not contain specific guidance directed to gypsies or travellers or to the exercise of planning functions. ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, which dealt with the issue of the impact of the duty in the Children Act in immigration cases, new because of sections 55 and 46 of the Borders Citizenship and Immigration Act 2009, pointed out that a decision needed to meet section 11 to be accordance with the law for the purposes of Article 8.2, and that the best interests or well-being of the child needed to be not just a consideration but a primary consideration. A primary consideration was not the same as the primary consideration.
- Mr Willers sought to use this in two ways. The defendant had had no regard to the duty especially in relation to physical and mental health and emotional well-being, and had ignored the specific duty to treat the needs of the child as a prime consideration in its report. Evidence however in relation to educational need was quite sparse, given the importance attached to the assertions about it. I was told that 103 children from 70 or so pitches were in full time education, mostly at Crays Hill Primary School where travellers made up almost all the pupils, having a low attendance rate and a high absence rate of 54 per cent. Some older ones had home education and two were at secondary school. The last minute evidence for the claimants in action CO/9115/2011 said that Dale Farm children made up 95 per cent of the children at Crays Hill Primary School: there had been a marked change in recent years, especially as the children and families had become more settled and trusting of the skills developed in that school. They had begun to recognize the advantages of education and especially of literacy. This evidence was borne out by a number of statements made at the inquiries, to Dr Smith and for the purposes of this action, including by those whose children had behavioural difficulties. The threat of eviction had made some children reluctant to leave home. The process had caused anxiety. I see no reason not to accept that.
- Mr Jacobs said that the position of children represented a large scale but not short term emergency. Both he and Mr Willers submitted that, having regard to health and education, though relevant, was not a complete analysis of what was best for a child's well-being, nor had it been treated as a primary consideration. The best interests included the preservation of the traditional way of life, links with the extended family, a safe environment and continuity of education, all pointing to a stay of proceedings until alternative accommodation had been found.
- A key component of the arguments of Mr Willers and Mr Jacobs on proportionality and material considerations concerns the prospects of success on appeal for Church Road and the application for the Gardiner Lane South site because of the potential these sites together might afford for accommodating some or most of the Dale Farm residents, and even the potential accommodation that one alone might offer for some of the more needy cases, other than in bricks and mortar. There is no test that reasonable prospects of success on appeal make section 178 action disproportionate. It is a factor to be considered, particularly when success would lead to claimants staying where they are. There are no prospects of success of their staying at Dale Farm. No applications have been made in that respect, save for plot 45, to which I shall return. Mr Willers and Mr Jacobs concede that there are no prospects in relation to Dale Farm. Mr Harwood's arguments that there are seem inconsequential. Mr Willers and Mr Jacobs' argument concern the prospects of success elsewhere which, if realised, might lead to the voluntary departure of some.
- I accept that the RSS and the need for 62 pitches as yet unmet in Basildon will be given considerable weight in the appeal in November in respect of Church Road. The weight to be given to the need reflects the way of life and the personal needs of the adults and children, their education and all aspects of family life. I find it impossible to say what the prospects of success are. The Natural England objection and the general amenity objections appear to be strong. I do not accept that Natural England's most recent letter is a withdrawal of the objection. It does not say that it is. It reiterates its concern about the adequacy of ecological surveys in respect of important wildlife sites. These inadequacies cannot be made good, or the objections of substance resolved, before the summer of 2012 at the earliest, by which time the survey results, if favourable, would have been fed into the planning system. I cannot conclude therefore that there are any particular prospects of success, although I would not rule them out. It may be that the appeal would fail because of a want of information which time and effort later might make good.
- I accept that the District Council provides no assessment of its views on the prospects of success on appeal, leaving me to make the judgment, which I have done as best I can. There is nothing in the material to suggest that the District Council does not expect to win, notwithstanding that it ought to recognize its position on the need case is likely to be criticised. I am not prepared to say in relation to that alternative site that the prospects of success are so low as to make it immaterial, but there are too many uncertainties to make the possible omission by the Council to provide an assessment of the prospects of success of an appeal significant. After all, it will not help the claimants stay at Dale Farm. There is a clear and reasonable basis for the refusal of planning permission. There are clear prospects of success for the Council, even if the need case may have been inadequately assessed. I do not find that the decision in Windsor Lodge helps me beyond the view that I have formed on an earlier occasion, that Basildon District Council takes an over-optimistic and inaccurate view of how need should be assessed.
- Its particular approach has garnered modest support from the Secretary of State and most recently has been rejected, but Basildon District Council raises a number of legitimate points. Of itself the success at Church Road would not help more than a modest proportion of the residents at Dale Farm, even if more pitches were made available for them. Nothing would be available before January at the earliest and, if lost, there is the potential for a legal appeal. The District Council is entitled to be sceptical, as I am, of the ease with which Mr Puxon refers to the doubling up on that site, doubling up on other sites and finding unauthorised sites to go to where they might be left in tranquillity, as a means of supposing that a significant difference could be made by success at Church Road. I would be sceptical, as the Council is entitled to be, for reliance on the potential expansion of a site not yet permitted. After all, there are 50 or so pitches at Dale Farm without doubling. 12 are sought at Church Road. The envisaged increase now referred to would not necessarily assist the environmental case for the appellants at the Inquiry. Paradoxically, the insistence on staying at Dale Farm and resisting removal, in the way the claimants have done, does not help their need case. The case is stronger and more urgent if they are unable to postpone departure and in fact have left and are perhaps temporarily in bricks and mortar accommodation or are on other sites from which they justifiably would seek to escape. The prospect of planning permission could only rationally be given very limited weight as a basis for a decision not to enforce the criminal law against the 50 or so pitches.
- I do not consider that weight could rationally be given by the local authority to the application for Gardiner Lane South. The application has been twice treated as invalid. There has been no remedy for that in several months, so its ability to produce pitches suitable for the travellers to go to is remote.
- In reality, the claimants have had ample time with the DFHA to find somewhere else, if it were realistically possible to do so, in Basildon.
- The court should also be careful about the prospect of failure at Church Road leading to further applications on other sites, and consequent repeated further delay to section 178 action. The court needs to be careful about delay because it delays the enforcement of the criminal law and sets in train a sequence of delays, whilst more and other sites are sent through a planning system which in relation to the Dale Farm site has reached emphatic conclusions on several occasions.
- I emphasize that the fact that the travellers might have nowhere lawfully to go is the basis on which the adverse planning decisions have been made by the Secretary of State on many occasions. There is no reason for the criminal law not to be enforced here because they might have no such site to go to or might find some site at some future date.
- The fact that the Windsor Lodge decision was not reported in the 2 August report does not in my judgment alter the picture. The first crucial aspect is the continued rejection of the approach by the District Council to need. It only relates to a single pitch. On 17 May the District Council was well aware that it was not aligned with the RSS on this issue. The second crucial aspect is that real weight is given to the RSS, the intention to abolish it notwithstanding, confirming that the effect of the Cala Homes decision in the Court of Appeal had been accepted in full by the Secretary of State. This should have been taken into account by the District Council on 2 August. It is relevant in two respects. The need case in general is not adequately catered for by Basildon District Council and its prospects for success at appeal are undoubtedly affected by that. It emphasizes the need case but it does not alter my view that I cannot assess the strength of the prospects of Church Road overall any more accurately than I have done. It would not alter Basildon District Council's view of the importance of upholding the decisions on the proper enforcement of planning law on Dale Farm, with the planning decisions overwhelmingly against the continued traveller residential use. It could not and would not alter their view on the proportionality of removal that the residents at Dale Farm might at some stage win an appeal on a small site which might take some residents. I do not consider that the fact that it was not reported is therefore a point of any significance in this case.
- Although the decision emphasizes the deficiencies in Basildon's attitude towards need, and it emphasizes that the 17 May report did not put the weight now required on the RSS, it is clear that the role of the DPD system is still emphasised in the allocation of gypsy and traveller sites. I accept that it is not the District Council's fault that the precursors to the timetable for DPDs had slipped. H3 also recognizes that development control decisions can lead to the meeting of need on a temporary basis, but it is clear, the RSS notwithstanding, that the District Council has set its face against further gypsy or traveller site provision, and so knowing the Secretary of State's attitude would not have led to a different view being taken. The question is whether that makes the s178 decision disproportionate, and it is for me to make the assessment as to whether that is a disproportionate decision. I shall deal with that when I deal with proportionality generally.
- I do not accept Mr Taylor's point that the District Council has complied with its duty under section 255 of the Housing Act. If it had done its own GTAA assessment it may well have come up with a nil figure which would not necessarily have been unlawful under the Housing Act. If, on the other hand, it relies for fulfillment of the duty on the Essex County Council GTAA assessment of 62 or so pitches, it has no development strategy for meeting that. Obviously one cannot rely on the GTAA of the County Council to fulfil the section 255 duty whilst disavowing its conclusions, but if it did its own GTAA there would be no advantage for the claimants. Although it is expected and desirable that the Housing Act GTAA and the RSS should march together, it is not a matter of a legal requirement that they do so.
- All this illustrates to my mind the problem of the delays in the challenge and the problems of last minute legal action. An allegation that the Housing Act duty in section 255 has not been complied with could have been made months ago or even before the decision in relation to section 178. If a breach were sought to be remedied by an assessment that there was no need, there could have been a challenge to that decision. If the challenge had been rejected there would have been no advantage for the claimants. If it had adopted the RSS figure, the strategy would still be to meet it via the DPD process, the timetable for which has slipped beyond 2011, for reasons not of the District Council's making. All that would be left would be the prospect of development control decisions being made, probably on a temporary basis, for the benefit of a small number of residents on a small site.
- It is important to test in what way a strategy for more sites could and would be material for the section 178 decision on this site. Section 178 is not a decision on the grant of planning permission. The planning merits of this site have been resolved against the claimants. The planning stage has gone beyond the decision to uphold enforcement notices to the stage of enforcement compliance, where non-compliance is a criminal offence, and there is no prospect of planning permission. Whilst it would assist the need argument on other sites, there is only one at the planning appeal stage and the objections cannot be that the prospects on another site would reasonably have affected the decision here under section 178, unless there were high prospects of imminent success, leading to full or largely full compliance with the Dale Farm enforcement notices. This is not the case either in relation to the prospects of success, nor in relation to the scale or certainty of user. The fact that speculative other unknown sites might have come forward had the local authority engaged more vigorously in a Housing Act strategy or DPD process, could not be a basis for saying that the District Council would not or should not decide on section 178 action here, or that a decision to undertake it was disproportionate. If the District Council should have taken a different approach under section 255 and had so recognized, it would not have altered its decision one whit on section 178 action, I am quite satisfied, nor would such a reaction have been irrational. If the GTAA position was a material consideration in relation to section 178 about which I have real doubts, there would have been no effect on the actual decision taken. That would have been perfectly rational.
- I accept that Cala Homes in the Court of Appeal was a material consideration and was ignored in the 2 August decision, limited though it is in the number of persons affected by it. It would have emphasised that the need for 62 pitches was to be given considerable weight which, even without the conclusion of the DPD process, would bear on development control decisions, but the same points that I have made in relation to the RSS apply here. This is not a case about the prospects of planning success on Dale Farm. There are no further development control decisions to be made about it. Whilst relevant to the prospects of success on other sites, and Cala Homes makes them greater than the District Council had supposed, it is difficult to see any other site than Church Road which it could assist. Gardiner Lane South is not even at the application stage in reality because the disputed invalidity has not been remedied. There is no timetable for its decision. It is clear again that it would not have affected the actual decision. It would have been perfectly rational for it not to have affected the decision. It is difficult to see how it rationally could do so. Certainly if the matter was before me as a matter of proportionality I would not decide that the section 178 action was disproportionate. If there has been an error in relation to section 255 and Cala Homes, as in my judgment there has been, and if an action had been brought promptly in relation to it, I would nonetheless in the exercise of my discretion have refused to quash the section 178 decision.
- Mr Harwood raised a related submission, to the effect that the District Council had ignored the option of a negotiated settlement. I have referred to the relevant passages in the 17 May report. One argument was that this passage in relation to negotiations misstated the policy set out in PPG 18, paragraph 5.5, as analysed by Lindblom J in Gazelle Properties Ltd and Sustainable Environmental Services Ltd v Bath and North East Somerset  EWHC 3127. He pointed out that the passage cited did not make the negotiations immaterial to the judgment of expediency when issuing enforcement notices. The tenor of PPG 18 was that prior negotiations were essential. The latter word overstates what expediency requires. Either way, there is nothing in this point. Although the section 178 decision is an expediency decision, in the sense that a judgment on discretion is being exercised, and negotiations or the potential for negotiations may be material to that decision, it is a decision at a very different stage from that in Gazelle. Moreover, the context of the Gazelle decision was that negotiations were offered for regularising the breach and for obviating the need for an enforcement notice but had been ignored. That is not the position here. There have been negotiations, discussions was what Mr Puxon said, which ended in October 2010. They had not been revived. There is no evidence that they could or would be revived. The stances that the residents would not go without suitable alternative lawful sites to go to, and the District Council was unwilling to wait until that happened and has not been helpful in finding more, were clear. The travellers were pursuing opportunities on HCA land with its tacit support and at least without its opposition. The response of the District Council to the Church Road application shows how minimal were the prospects of discussions taking matters further.
- As I understand the structure of the officer's report, it included the material relevant to the past negotiations, including the witness statement of Candy Sheridan, the claimant in the housing action, and of Dawn French for the defendant. The correspondence relevant to those discussions was also included. The suggestion from Mr Harwood that the committee was not given the option of seeking negotiations among the enforcement options is right in one sense, in that they are not referred to as an enforcement option, but the prospect of doing nothing on the Dale Farm site until the District Council had found suitable alternative accommodation and permitted it and meanwhile permitting a stay is nil. The District Council's view was that there was no alternative. The negotiations have been about no more than doing what the claimants asked them to do. It is clear, reading the report, that that is what the Council had set its face against. The Council were well aware of the prospect that if a site were permitted, capable of taking some or all of the Dale residents, they might be willing to go there, but negotiations had ended in October 2010. There had been no progress since, save on the repeated applications on Church Road. There was no obligation to enter negotiations and no failure to have regard to a consideration material to section 178.
- Mr Willers accepted that there was no prospect of planning permission on Dale Farm, and whilst the Secretary of State has not accepted the District Council's stance on need, he has never made fulfillment of the requirements of the enforcement notices contingent on an alternative site, nor has he ever assumed that there would be alternatives. Unlike Mr Willers and the position of the claimants in the Court of Appeal, Mr Harwood submitted that there were prospects of success for planning permission on Dale Farm in the light of H3, the need case, as developed in the Windsor Lodge decision, the continued weight to be given to H3 and the inability of direct action to achieve a complete clearance of the site.
- This is hopeless. It is clear from the sequence of inspectors' reports and decision letters that there is no prospect of planning permission or even temporary planning permission for any caravans. Mr Luba in the McCarthy case in the Court of Appeal was right so to accept. Those decisions recognised that there is no alternative site. They do not assume either that there is no further need for one in the Basildon area or that none would be provided at some stage in the future. The fact that following the decision of Edwards-Stuart J certain unauthorised development is not covered by the existing enforcement notices and certain other structures cannot be removed does not assist at all. There is no evidence that the District Council or the Secretary of State had reached a view on an alternative basis or would grant planning permission even on a temporary basis for those reasons. No planning application has been made. It could have been made at any time to test the strength of those points.
- It is clear that the limited area of potential reversion to a scrapyard use has been considered in at least two of the decision letters and thought so unlikely as to be of no assistance to the appellants. There was no challenge to that conclusion and no evidence of any change in circumstances. It is perfectly clear that the fact that, for reasons which have nothing to do with any view of their planning merits or the prospects of obtaining permission, this section 178 action will not achieve the complete removal of all the caravans, buildings and hardstanding, this does not diminish the real benefits which enforcing compliance with the criminal law will bring to the site. There is no room for the suggestion that the retention of a few caravans, could lead to the retention of all, in any Secretary of State's decision, nor is there any evidence that it was thought by the inspector or by the Secretary of State or by Basildon that all means of enclosing plots as permitted development would be removable under section 178, its argument before Edwards-Stuart J notwithstanding. They are not struck at expressly by the enforcement notice.
- The reports to the committee do not refer to any incorrect assumption of complete clearance. It is not suggested that the reports are inaccurate. What is said is only that they do not explain what section 178 action on this occasion would not remove. Moreover, to the extent that any of those points were not known to or taken into account by the District Council, those probably in relation to the three caravans, the walls and fences, if any, it is not conceivable that it would or should affect the view of the District Council as to the importance of fully enforcing the criminal law after so long here. It could not in my view rationally do so either. If the issue becomes one of discretion, I would refuse relief on this point.
- Moreover, other means of removal exist, from further enforcement notice to compulsory purchase orders. It is impossible to see that the possible need for such lesser steps could lead to a decision not to remove all that which has defied the criminal law, and the effective enforcement notices for so long, and which is a significant part of the Green Belt damage. That the enforcement notices were not drafted to cover plots 45, 50 and 51 caravans is an oversight.
- I have received today further submissions from Mr Harwood by reference to the officer's report on Margaret McCarthy's application for the retention of the caravan, hardstanding, fences and walls on plot 45. This is due for consideration on 18 October 2011. The officer recommended refusal. Mr Harwood, with the support of Mr Jacobs, makes four points.
- Any harm to the openness of the Green Belt caused by walls and fences which cannot be removed should be ignored. That is what the report says but it does not deal with it in more detail. I have already dealt with that. I see no significant change in the District Council's position or the Secretary of State on the basis of his appraisal. Secondly, it is said that there was a failure to consider negotiations and that the report contains the first reference to the discussions with the HCA but fails to recommend that negotiations be taken up.
- It is difficult to identify through these discussions the prospects of success for any future appeal. I see no change in the position, nor evidence of a material consideration ignored in respect of either past or prospective fruitful negotiations.
- Thirdly, Mr Harwood says, rightly, that this report makes good the deficiency to which I have referred in respect of the continuing substantial weight to be given to the RSS. I have discussed the significance of that and my conclusion has changed not one whit. The Windsor Lodge decision is referred to and its significance discussed. I have already referred to it. Fifthly, I do not accept that the officer's report can sensibly be read as limiting the harm from a residential caravan on plot 45 would do to inappropriateness of development, and with no harm to visual and other amenity. That is a wholly unrealistic reading. Finally, I do not consider that the reference to the Children Act shows that that had previously been ignored.
- Mr Harwood suggests that the officer's report provides no support for the view that reconsideration of section 178 action would lead to no change in the decision. I read the report in the contrary sense. It reiterates the new points taken into account, the consideration of personal circumstances, and how inappropriate planning permission would be, even if one caravan cannot be removed. It is obvious that there would be no change. There is no basis for suggesting that there is any prospect of success for any application on this site. Pertinently, in five years in Basildon there have been 21 applications, two withdrawn and two remaining for consideration. 17 were refused. 13 were appealed. Of those 13 one was withdrawn, one allowed, one is in progress and 10 were dismissed.
- Mr Harwood next contended that the steps to be taken by the District Council constitute a development project within Article 1.2 of the EIA Directive, as the execution of construction works or of other installations or schemes which included demolition. Development consent was required under that Directive. The District Council needed to screen that for significant environmental effects. There had been no screening at the time of the enforcement notice in relation to the requirements, hence the proposed action was unlawful. This was an Annex 2 project as an urban development project since it constituted demolition and change to a caravan site. The Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations either as in 1999 or 2011 did not require such consent through an error in transposition but the Directive was directly effective. It was irrelevant (no authority cited) that the works were being undertaken to remove unlawful development. Retrospective planning permission for unauthorised development did require screening and EIA (see Ardagh Glass Ltd R (on the application of) v Chester City Council  (Civ) 172.
- I do not accept this as remotely arguable. It would be absurd to treat steps required to be taken by an enforcement notice to remedy a breach of planning control as development itself requiring consent and screening for EIA. It is not conceivable that the Directive intended any such requirement, benefitting only those who disregard the law, and throwing a pointless hurdle at the process of enforcement. It is bizarre to suppose that development consent could breach control and be refused and yet the remedial steps equally refused. It is even more bizarre if one contemplates the position of the individual landowner refusing to comply with an enforcement notice because he needed a development consent he declined to apply for.
Section 11 of the Children Act.
- I accept that there is a duty on the District Council in taking decisions to have regard to the best interests of the child as a primary consideration, and nowhere does it expressly mention that so as to give it explicit consideration. That does not mean that the duty has been breached. This is not a case where parents and children are being split as the District Council knew. The crucial factors for consideration are health and education. Those have been considered through the planning process and all decisions from 17 May onwards have been undertaken with care, ascertaining the position in relation to children, although some information has come at the last minute, and the evidential basis for the education of these children from the claimants has been very last minute. In reality, it is difficult to read the decision letters and the reports to the committee as treating them as other than a primary consideration. They were considered and treated as of prime importance. Similarly, the retention of or respect for the traveller way of life, essentially here not living in bricks and mortar, since the parents' concern on education and health is a settled location from which to access services, was a major part of what underlay all considerations, and it is an obvious primary consideration at all stages.
- The District Council will fulfil its statutory homeless duty at least to the extent of providing accommodation in bricks and mortar in which parents can choose to live with their children. The District Council is clear in saying that there is no suitable alternative caravan site for them to go to. If parents decide not to take up the accommodation which the District Council is prepared to provide and live in caravans on the roadside, that is their decision. But they cannot insist that the best interests of the children are being harmed in those circumstances by any decision of the District Council. It would be the parental decision as to where they would be brought up. Conceptually I find it hard to conceive that a child's best interests lies in allowing the parents to commit criminal offences where the situation will not be regularised in their favour as a consequence of any decision of the Council.
- There have been references made in this and other contexts to the impact on some children of the fear of eviction and the process of it, especially if it turns out to be forceful. I do not think that that can weigh here. It is the residents of Dale Farm who have the obligation to leave voluntarily and in co-operation. If removal becomes forcible it would be because of the decisions made by the residents and any misguided supporters not to comply, or to resist. That is not to be laid at the door of the District Council.
- Section 149 of the Equality Act 2010 was raised. I am satisfied that due regard was had to its requirements in relation to the protected characteristics through the planning process in the officer's report, in the service impact assessment and in the steps to be taken.
- By the same token the District Council has been at pains to consider the personal circumstances of the residents to which health, social service and other needs are important. The last minute evidence that has been produced is really to support a proportionality or other challenge to earlier decisions than those of September. Residents were invited to supply relevant information well before 17 May. Some did so and it was considered carefully in closed session. At the beginning of August, and again in a series of decisions in September, it is clear that these were considered, even though it is far from clear that they were referring to changes that had occurred since May or indeed since August. I have no reason to suppose that the consideration given to those individual cases was other than conscientious. Arrangements have been made for those with particular health needs to be supported during the move and for the continued provision of utility and personal services. The mechanics of removal have been devised with care (see the first witness statement of Dawn French in the Margaret Sheridan action and the commentary on the service impact assessment and the details of the education steps).
- It is not said that these needs were not taken into consideration. Indeed, throughout the planning process the health and other personal circumstances of the residents have been to the forefront of consideration. Indeed, although the identities of those who are most ill may have changed, and variations in or degree of ill-health may have arisen, none of those circumstances ever led to the grant of planning permission even on a temporary basis, nor more than an extension of time for compliance, even where no alternative site existed.
- Alternative accommodation for the homeless is available. I accept that their aversion to bricks and mortar may mean that it is not taken up, but the prospects of success for some Dale Farm residents on other sites is at issue, and the occupation of bricks and mortar accommodation for some could be short. In any event, their position would add to the need case. Their need case, especially for temporary permission, is not necessarily assisted by endless non-compliance with a requirement to leave, forcing legal action to end their presence. They are not being forced into bricks and mortar accommodation but those who need accommodation for health reasons can have it. It is their decision whether they go voluntarily so that disruption to health and family life is minimized.
- I do not accept the argument that the action under section 178 should be stayed because the hoped for medical examination has not taken place. There are disputed reasons why that has not occurred, whether the reluctance of the residents to attend, information about when and where to do so or for some other different reason. It is clear that such medical information that the claimants wished to provide was considered. It was not rejected because of its provenance or because only material from the GPs or PCT was relevant. The District Council cannot, without their consent, access those records.
- I recognize, as the planning process also shows, that there is a degree of dependency, at times a high degree of dependency, in the care offered by those either on the same or other pitches as part of the extended family obligations that are part of the way of life of those on the site. That may not continue depending on the arrangements made. I accept that it is a real disruption if removal takes place. It may require less satisfactory state care as a substitute. That is relevant to the question of the provision for gypsy and traveller needs, or to a delay if strong enough prospects exist for a suitable alternative site to become available shortly. That is not the position here. On this, as on other aspects, arguments have been raised which are in effect arguments for the very temporary planning permission which has been refused. The argument for a stay under section 178, whilst lawful pitches are found, is in reality just such an argument for a temporary permission, as Lloyd LJ referred to in paragraph 78 of his judgment in McCarthy.
- It was also accepted by Mr Willers that what was suitable alternative accommodation was not simply a matter for the choice of the claimants. It might be influenced by decisions of the extended family and those for whom family members might have been the responsible carer. It was for the judgment of the local authority. It could include bricks and mortar accommodation, perhaps depending on the duration of the provision in individual circumstances. It would only be unlawful if it fell below the Wednesbury minimum (see Codona v Bedfordshire District Council  EWCA (Civ) 925. That issue is for resolution through other processes. I see nothing to suggest that the offers are unsuitable here.
- I accept that the District Council's attention was not drawn to the specific difficulties which would be faced by the users of three plots where the caravans can be temporarily shifted to permit the removal of hardstanding and then relocated afterwards at a lower level, and the real hindrance of access for emergency vehicles if the access road hardstanding is removed as is intended. Nor was the attention of members drawn to, nor did they consider the position on plot 33 where the residential use of the brick building was not struck at by this action, whatever else may be done later. In reality, the District Council is under no obligation to permit the breaches of planning and development to continue because enforcing the law creates difficulties for those who wish to continue to live there. If the occupants cannot live there as they would wish, and the fact that they cannot be removed at present by virtue of section 178 action does not mean that they are lawfully present, that is their decision. They decide whether they are going to stay because they cannot be removed or whether the circumstances in which they would live there lawfully are such that they do not wish to stay there longer. I cannot see those factors being relevant or, if relevant, relevant to such an extent as to invalidate the decision either individually or generally. I am satisfied that it would make no difference to the decision. I would not quash either it even if that issue should have been considered.
- It would be astonishing if the fact that there were difficulties for some who might remain meant that all should stay until they all voluntarily went, meanwhile committing daily offences.
- I make some further general observations about the significance of the sequence of planning decisions, each one of which went against the appellants, save for the extension of time in which to go, an extension long since expired. They lost because site specific policies outweighed the personal circumstances and needs of the traveller community.
- In Chapman v United Kingdom (2001) 33 EHRR 18 the European Court of Human Rights recognized the vulnerability of gypsies and the need for respect for their way of life but it concluded that it was not right to permit gypsies generally to breach the criminal law even if suitable alternative sites were not available. The same applies to travellers. The court was not persuaded in that case that suitable alternative sites were unavailable but it did not make enforcement contingent on their existence, though it is relevant:
"H16. 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 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 is less strong. The court will be slow to grant protection to those who, in conscious defiance of the law, establish a home on an environmentally protected site. 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."
- Coster  33 EHR 20 applied the same principles as in Chapman to the effect of a decision to take action under section 178 rather than to continue futile prosecutions. It is not said here that the s178 action is disproportionate because the local authority should have undertaken further prosecutions.
- The decision to take action under section 178 is judicially reviewable; such a decision can be disproportionate. An important and potentially the decisive and weightiest factor, certainly legitimate for a local authority to give weight to, and one which a court must give real weight to, will be the public interest in the need to maintain public respect or confidence in the planning system and the proper enforcement of the criminal law to avoid it being brought into disrepute, effectively suspended or dispensed with in favour of particular persons or groups. I made these points in O'Brien v Basildon District Council  EWHC 1346 (Admin), paragraphs 145 to 150 and 152 to 156. Those general points continue to apply here.
- I have set out the facts so that it is clearly understood that there have been enforcement notice appeals covering all the sites here which the appellants lost with no alternative sites for them to go to. Planning appeals have been made for permanent and temporary planning permissions. In those appeals the harm to the Green Belt was weighed against the particular circumstances of the individuals, including their health, their education, their wish to maintain their way of life as travellers, their aversion to bricks and mortar, the absence of other sites, in part at times the failure of the local authority to do all it should have done to assist. All those were considered but the conclusion has been reached time and again that this is the wrong site for travellers' accommodation. The enforcement notices became effective and were ignored by the appellants in breach of the criminal law. No further planning applications were attempted.
- The District Council tried lawfully to take this action in 2005 and 2007 but were prevented by a decision overturned on appeal which then had to be reconsidered because of the lapse of time. A further decision was made after negotiations between 2009 and 2010 and after inviting the residents to provide details relevant to the removal. It was not until more than three months had passed and clearance was imminent that these proceedings were begun.
- There is a real risk in my view that to give the enforcement of the criminal law such limited weight as would be necessary in order to hold the decision disproportionate, because of the interference with Article 8 rights, would bring the criminal law and planning system into serious disrepute. I emphasize that of the two aspects of proportionality only one could assist the claimants. There is no measure short of taking the steps required by the enforcement notices which will achieve the legitimate object of achieving compliance with the enforcement notice; that is to say, the removal of caravans is proportionate to the legitimate object which is the removal of the caravans. The only question which could be raised on proportionality is that the impact of achieving that legitimate end is so great that that end itself should not be achieved.
- Mr Willers says that it should not be achieved until the outcome of the planning inquiry or until suitable alternative accommodation to which the travellers will go voluntarily has been provided, after several years of their attempts to enforce the law. I do not consider that those arguments can succeed. It is important in this second limb of proportionality to weigh the advantage of the achievement of the wholly legitimate aim of enforcement of the criminal law in the public interest, against the impact which it would have on the right to family and private life which the travellers are entitled to enjoy. I have no doubt that taking action under section 178 would be significantly disruptive. They would have to leave the homes they own or lease. Wider families would be potentially split. It would be necessary for them either to go to accommodation which is not satisfactory to their way of life, to bricks and mortar, or satisfactory to anyone if it is illegal encampment by the roadside or trespass on an another unauthorised site. There is the potential for disruption to health and education services and to care.
- The judgment of disproportionality involves a consideration of the degree of interference and harm to the individual on a case by case basis, as has been done through the planning system, and the harm to the Green Belt, highway safety and amenity, and now especially to public confidence in the planning system and the proper enforcement of the criminal law.
- Here, the essential contention of the claimants was not that they should be allowed to stay indefinitely but that they should be allowed to stay until either the resolution of the planning applications or until suitable alternative accommodation has been found. In reality, the thinking and justification is that there should be no removal until they can go voluntarily to other lawful suitable alternative sites. That is, on the face of it, a request for an almost indefinite stay. A request to stay until the outcome of the appeal, say in January 2012, does not merely postpone the otherwise inevitable for a short period to no particular avail. It simply heralds the start of a process of further delay as other applications are made, each with a timeframe not too far ahead, with the same indefinite delaying effect. In any event, a success at Church Road would mean no more in reality than that some from Dale Farm could go there, although without guarantee, but the issues would remain over the eviction of those who would not. They could not stay in such circumstances on Dale Farm.
- In my judgment, the degree of prospects of success in relation to other sites or of finding suitable alternative lawful sites to go to is low. In order for the removal to be disproportionate I would require to see a high degree of prospects of success, imminent removal of all or most, and a real significance through them in reducing the harm they are doing. A very large proportion of the residents would have to go with the rest to follow swiftly. As I made clear in O'Brien, the planning system provides the means for the assessment of the merits of individual cases with policy support for gypsy and traveller needs, including their way of life and their human rights. It has always included a careful consideration of their personal circumstances. The Dale Farm residents have had that but they have lost in relation to this site. Special consideration is afforded in that process to their way of life and to their needs, but once the enforcement notices have become effective the criminal law applies equally to all, to travellers and others alike.
- The travellers have then had through the legal process a considerable extension of time which the decision of the Court of Appeal shows they were not entitled to. They have had further time since then. All inspectors and Secretaries of State have confirmed the significant harm which their use of this site does to the Green Belt, highway safety and visual amenity. The personal circumstances have been further considered by the District Council. The authority has carefully considered the mechanisms whereby removal would be effected. There is nothing so different in the nature or extent of the educational, health or care needs as now presented that it changes the overall view of the proportionality of upholding the enforcement notice and taking enforcement action from that to which the inspector and the Secretary of State came.
- The District Council is entitled to consider that the provision of bricks and mortar accommodation and the steps it would take in relation to the removal by way of endeavours to mitigate the impact during and afterwards are relevant to the decision on proportionality which it has to make. There is no prospect of their getting permission on this site. There is no imminent prospect to a high degree of a significant number of pitches becoming available.
- Applying what I said in paragraph 184 of O'Brien and in the light of the reasoning leading to it, I am satisfied that the Council did lawfully and rationally consider those factors of real significance as to proportionality, and especially so against the background of the planning history and past litigation. It did what it could in ascertaining and considering the personal circumstances of each occupier and considered what it could do by way of mitigation for the inevitable difficulties that will arise.
- In Belfast City Council v Mis Behavin' Limited  UKHL 19,  1 WLR Baroness Hale said at paragraph 37:
"[Where] the [local authority] set itself the task of balancing the rights of individuals against the wider interest and has reached a conclusion on a reasonable and normal basis it is difficult to upset that balance."
- That is applicable here, even though I have concluded that the local authority made errors in respect of the weight to be given to the RSS and H3, and in relation to section 225. There have been certain circumstances which it has not specifically considered in relation to individuals. None of those are of major significance compared to the degree of harm to the Green Belt, respect for the law and its consideration of personal harm which are the crucial factors in the balance.
- If there has been an error, and it becomes for the court to strike a proper balance itself in the light of all the evidence it has heard, there is only one conclusion to which I can come. The lengthy process of the careful consideration of the merits against the background of there being no lawful suitable alternative site, inadequate provision at times by Basildon District Council, and the conclusion on a number of occasions by the inspectors and Secretaries of State show that the essential features all come down against the travellers in this case. All the inspectors and Secretaries of State found that there was significant harm to the Green Belt and highway safety, so much so that that not one temporary planning permission was granted. Personal circumstances were carefully weighed and not so different from those here. Non-compliance ensued. Criminal offences were committed daily by the owners and litigation to permit removal achieved delay but was unsuccessful. Further careful consideration has led to a decision here in a last minute challenge.
- I recognize that the removal of the travellers, notwithstanding the careful consideration given to the process of removal, and protection during removal, is going to give rise to considerable distress and disruption to the travellers' way of life. In my judgment, the time has come for the only steps now effective to enforce the law to be taken. The steps have been delayed by this litigation at considerable cost. I am satisfied that proper consideration has been given to the mechanics to cope with the distressing and disruptive and problematic and awkward decisions which removal will impose upon the travellers. But a further stay with possible success for some somewhere else does not provide a possible basis upon which I could regard the removal as disproportionate. I have considered the failings by the District Council in relation to its approach to the provision of sites for travellers. I have considered the personal circumstances and the material before me with care but I have come to the conclusion that any decision other than that it is proportionate now to take proceedings under section 178 will bring the planning system and the criminal law into serious disrepute and a greater loss of public confidence than sadly but unsurprisingly has occurred already.
- Accordingly, I refuse permission for these proceedings to be brought. I do so for delay reasons and for those where delay does not apply I refuse to grant permission because I do not consider that the arguments have significant merit. In relation to those where it is clear that there has been an error, namely in relation to Cala Homes, even had I granted permission I would not have granted relief in the circumstances. So far as the challenges to the decisions in September which are not out of time, I am satisfied that they have unarguably been reached proportionately. Each application is dismissed.
- MR TAYLOR: I apply for the Council's costs in relation to the claimants. In claim CO/9316/2011 the claimant has legal aid. I would ask for the usual order to be made in respect of that claim. In respect of Mary Sheridan, CO/9098/2011…
- MR WILLERS: Legal aid has been granted by those instructing me. Whether in the end the Legal Services Commission sanction that decision is a matter that will become clearer. There is some debate. If in the event my client is not legally aided or legal aid is withdrawn that will have to be communicated. The usual order is the appropriate one.
- MR TAYLOR: In relation to the third claim, Sheridan and others, there is no legal aid. I would seek the Council's costs to be assessed if not agreed.
- MR JUSTICE OUSELEY: CO/9136/2011.
- MISS WILES: The position is the same. Legal aid has been granted under dissolved powers. I would also ask that there be an injunction granted to…
- MR JUSTICE OUSELEY: Let us do costs first.
- MISS WILES: The usual order including a detailed assessment.
- MR JUSTICE OUSELEY: You do not oppose it as a matter of principle?
- MR WILLERS: I cannot oppose costs.
- MR JACOBS: I cannot oppose costs.
- MR JUSTICE OUSELEY: There will be an order for costs in favour of the Council in each of these actions. In CO/9136/2011 and CO/9098/2011 that will be subject to the usual order, not to be enforced without leave of the court, and in all three the costs claim will be subject to detailed assessment. There is no doubt that in a case of this sort the court is assisted by the submissions of lawyers, even if unsuccessful. The points have been well fought, even if you go away and say you have it all wrong.
- MISS WILES: I ask for an interim injunction under section 31 (2) for the period in which we would put in an application for permission to appeal to the Court of Appeal.
- MR JUSTICE OUSELEY: I am not sure you are in that position. I have refused you permission. I do not think permission issues arise.
- MISS WILES: The application is for a stay for a week in order for a consideration that there were mistakes made by the Council in relation to Carla Homes.
- MR JUSTICE OUSELEY: The problem facing you and anybody else is that the only two points where I would have granted permission on the face of it, I am satisfied that I would not have given you relief.
- MISS WILES: In relation to the injunction, the time of one week, the compelling reason in relation to the claimants is that the eviction will have serious consequences. In these circumstances a stay of a further week is justified to enable the Court of Appeal to consider that position. It would not be desirable to have a situation, if the Court of Appeal were to consider the matter more favourably, that any action under section 178 that may have been taken would be taken.
- MR WILLERS: I have an application. It is without taking instructions from those who sit behind me. Having tried to absorb a lengthy and detailed judgment, I think it boils down to this. You have to strike the balance on proportionality. You have done so in such a way that the decisions that the local authority have taken have been upheld. We would submit that there is a realistic prospect that the Court of Appeal might strike the balance in the opposite way. We would ask for a short stay. I am not even certain that you would agree to a stay of seven days, a short stay, so that the claimants, certainly the claimant I represent, can consider the matter overnight and, if necessary, so advise and put in any application for permission to appeal. That is my understanding of the process. It used to be renewal.
- MR JUSTICE OUSELEY: I think I am right. I think you need leave.
- MR WILLERS: I do not think I need leave from you.
- MR JUSTICE OUSELEY: You cannot go further without permission from the Court of Appeal. I do not think my giving permission is of any value.
- MR WILLERS: I think that is right. It is for the Court of Appeal to decide. That said, in a case of this nature and if the direction is given that any appeal be lodged within short order, this would be an appropriate situation in which to grant a stay, using your discretion. What I would say is that the point on 255 is one which may be given more weight than you have decided it should be given, because although you considered that the effect of it might or the result of it might be speculative, without it being complied with, we might not be in the position we are in.
- MR JUSTICE OUSELEY: I dealt with that.
- MR WILLERS: Not necessarily in the way I would have liked. It is a point that has not been raised before. I appreciate your comment on delay. Those instructing me were not instructed in this matter. I was not instructed until 20 September and the judicial review claim went in on the 22 September.
- MR JUSTICE OUSELEY: There is more than a three month delay. We are not dealing with people facing the issue for the first time. They know about judicial review.
- MR WILLERS: They have been represented in the past. I would submit that the Court of Appeal could strike the balance in terms of proportionality in the opposite way.
- MR JUSTICE OUSELEY: The biggest problem is delay. Mr Jacobs, do you want to add your pennyworth or do you adopt Mr Willers' submissions?
- MR JACOBS: May I add that we do have to appeal to the Court of Appeal. The judgment will have to be digested. The Court of Appeal may take a different view with regard to section 255. There may be a point arising from the actions of the parents which ought to be considered separately in respect of the interests of the children. I submit that there is a lot to be considered. It is a detailed judgment. I would ask there be a stay granted so that steps can be taken.
- MR TAYLOR: An interim order will be granted where there is a serious issue to be tried. The question is whether your judgment gives rise to such an issue. The refusal of permission demonstrates that there is no serious issue. It does not justify a continued order in this particular case.
- MR JUSTICE OUSELEY: When are you proposing to start action if there is no order?
- MR TAYLOR: It will take a number of days to gather the resources. I have asked that question of those instructing me. They are unable to tell me the first date upon which they would be able to take action.
- MR JUSTICE OUSELEY: Is it before Monday?
- MR TAYLOR: It would not be before Monday.
- MR JUSTICE OUSELEY: The reality is that the logistics of gearing it up, in the light of what Mr Taylor has said, gives you at least tomorrow and Friday in which to consider it. I do not know if Mr Taylor can be of more assistance in relation to the timing. Is it going to take place before a week hence, in reality?
- MR TAYLOR: It is dependent upon what happens in the next stage of these legal proceedings. Once the Council says to the people involved in the eviction, the police, the bailiffs, etc, that action should be taken, it takes time for that to filter through into action on the ground. If there were to be an appeal, then it would almost certainly be the case that action would be delayed. I was going to seek an abridgement of time, my instructions are to a day. That is a short period of time. There are clear costs implications to the public purse. A day is longer than the Council had to prepare its case to respond in the Carla Homes case which was received in the afternoon the day before the trial started. I am asked for an abridgement of time to a day and any response be abridged to a day after that being received. My submission is straightforward. There is not an arguable case here. There is no basis for continuing an interim order. If the Court of Appeal think otherwise…
- MR JUSTICE OUSELEY: The reality, whatever I do, is that you have at least until the close of Friday to make your application to the Court of Appeal. Before then there would have been no removal. I am not sure it is necessary for me to make any order. The Court of Appeal will be in a position to decide whether, in the light of any submissions you make, it is going to make such an order. The longer you leave it the greater the problem. That is your problem rather than the Council's problem in the light of what Mr Taylor has said. If you do not make the application until Monday I would have thought the Court of Appeal would be surprised. You will not have an approved judgment. I do not think it is right for that consideration to delay your application. You will have to make your points based on what arguments you feel remain open to you.
- MR WILLERS: I have three notes of your judgment. I hope we will be able to provide the Court of Appeal with something close to an accurate record. There were a couple of references to those living at Dale Farm as being gypsies. They are Irish travellers.
- MR JUSTICE OUSELEY: I do not make any order staying the decision in the expectation that the absence of such an order would give you two days in which to make your application and you will make your application by the close of play this week to see what, if anything, the Court of Appeal says. I would say that any application to the Court of Appeal should be on notice.
- MR JACOBS: To be clear, as far as costs are concerned, they are to be assessed if not agreed. Could I ask for an order that there be an expedited transcript?
- MR TAYLOR: I am being told the Council will pay for the transcript.
- MR JUSTICE OUSELEY: Yes. If you are minded to make an application to the Court of Appeal you will need to alert them early.
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