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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Sheridan & Ors, R (On the Application of) v Basildon District Council [2011] EWHC 2938 (Admin) (12 October 2011) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2011/2938.html Cite as: [2011] EWHC 2938 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN ON THE APPLICATION OF | ||
MARY SHERIDAN | ||
CORNELIUS SHERIDAN and others | ||
MARGARET McCARTHY | Claimants | |
v | ||
BASILDON DISTRICT COUNCIL | Defendant |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
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
____________________
Crown Copyright ©
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.
Introduction
"(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."
The history
"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."
"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 ..."
"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 theHuman 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."
"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."
"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).
Personal circumstances
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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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.
"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."
"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 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."
"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."
"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."
"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.
"…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."
"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."
The Council's Decisions
"RESOLVED:
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."
"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 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."
"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 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.
The Current Proceedings
Delay
"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."
There was no separate decision on 22 September in response to a pre -action protocol.
Abuse of Process
Substantive Arguments
"(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."
"(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."
Conclusions
Plot 45
Section 11 of the Children Act.
Personal circumstances
Proportionality
"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."
"[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."