Court of Appeal backs decision to clear Green Belt land of Romany Gypsy caravans

The Court of Appeal has rejected a judicial review challenge to the decision of a local authority to use its planning enforcement powers to clear agricultural land in the Green Belt of caravans occupied by Romany Gypsies.

In Eastwood, R (on the application of) v The Royal Borough of Windsor and Maidenhead [2016] EWCA Civ 437 the appellant and family members had been stationed on land near Waltham St Lawrence in breach of planning controls since 2009.

The Royal Borough had sought to use its powers under s. 178 of the Town and Country Planning Act 1990 to clear the land.

In the Administrative Court HHJ Milwyn Jarman QC dismissed the judicial review claim brought by the appellant and another.

The appellants were given permission to take a challenge to the Court of Appeal on the rationality of the council’s decision, but were refused permission to advance a challenge on proportionality.

The appellants highlighted – correctly, according to Lord Justice Sales – how the council had failed to make sufficient and appropriate provision in its area for traveller sites which could accommodate the caravans in issue.

The occupants of the caravans included children who attended the local school and an elderly lady who was a family member suffering from Alzheimer's disease.

The appellants argued that if enforcement action was taken by the council to evict them from the land in exercise of its powers under section 178, they would be driven to camp at the road-side. That would be particularly disruptive for the children and very distressing for their elderly relative, given her mental condition, they added.

The appeal hearing began with counsel for the appellants orally renewing the application for permission to appeal on the proportionality point, but Lord Justice Sales described this application as “hopeless”.

On the rationality issue, the Court of Appeal judge took the appellants’ submissions in turn:

1. Counsel had submitted that the Royal Borough made an irrational decision in April 2013 because it failed to take properly into account what he maintained was the fundamental premise of the Secretary of State's decision in 2011 to uphold the enforcement notice, namely (he said) that removal of the caravans and their occupants from the land should only take place when a suitable alternative site had been identified for them to go to. “In my judgment, this submission is unsustainable on the facts,” Lord Justice Sales said. “There was no such fundamental premise of the Secretary of State's decision…. It is clear from the evidence that the Council did not fail to accord proper weight to the Secretary of State's decision.”

2. Counsel had submitted that it was irrational when Windsor & Maidenhead took its decision on 10 April 2013 for it not to wait until it had investigated more fully whether an alternative site might be found for the caravans, particularly when the council had just received a new list of potential sites the previous evening. HHJ Jarman QC had found, however, that it was possible to draw out the logic of the council's reasoning from what was recorded in the minute. “I agree with him,” Lord Justice Sales. “I consider it is tolerably clear why the council decided that it should not wait any longer before acting: the council had already waited a considerable period of time to implement the enforcement notice which it had issued in 2009, during which period serious harm to the public interest had continued by reason of the location of the appellant's caravan encampment on this Green Belt land; the 18 month period for compliance with the notice allowed by the Secretary of State had expired; there was from the expiry of that period a continuing breach of planning control in contravention of the criminal law; it was speculative whether any new site on the list would even be suitable for a traveller site, let alone result in a new location with proper planning permission to which the appellant and other occupants could move in the near future, and in fact experience as recounted in the minute showed that it was highly unlikely that would occur; it was therefore proportionate in the view of the council that it should proceed at that stage to implement the enforcement notice and put an end to the harm to the public interest which the notice was intended to rectify.” Lord Justice Sales added that he agreed with HHJ Jarman QC that "it is difficult to see that further information as to the likely timescale of the provision of pitches or sites would have removed to any significant extent the uncertainty relating to such provision which was plainly before the members". Sales LJ also agreed with the Administrative Court judge that in the light of this state of affairs, it could not be said that it was irrational or perverse for the council to decide to proceed to exercise its section 178 powers to clear the land without waiting any longer. “The appellant has failed to show that it was irrational for the council to decide that enough was enough and that the time had now arrived at which it would be reasonable and proportionate in light of all relevant interests to proceed to implement the enforcement notice, the validity of which had been upheld on the appeal to the Secretary of State,” Lord Justice Sales said.

3. Counsel had submitted that the judge erred in treating the decision of the council to proceed to implement the enforcement notice using its powers under section 178 as a matter of planning judgment for the council. In his submission, a decision to enforce planning controls was not a matter of planning judgment in which a significant degree of discretion should be allowed to the local planning authority, but was a matter in relation to which the court should make up its own mind and give little or no weight to the decision of the planning authority. In support of this contention, he relied on observations of Lord Clyde and Lord Hutton in South Bucks District Council v Porter [2003] UKHL 26; [2003] 1 AC 558 at [70] and [86], respectively. However, Lord Justice Sales considered this reliance on the South Bucks case to be “misplaced, for reasons already previously explained by Sullivan LJ and correctly followed by the judge in the judgment under appeal”. Sales LJ said that in the present case the court was not being asked by the local planning authority to exercise its (the court's) own powers to grant injunctive relief in support of enforcement action; “it is the local planning authority which is the relevant public authority deciding how it should act in the exercise of enforcement powers which have been directly conferred upon it by Parliament under section 178 of the TCPA”. In deciding how to exercise its own powers under section 178, the council had a discretion, Sales LJ said. “It acts lawfully if its decision falls within the proper scope of that discretion, and in the present context it will have done so if its decision is a rational one. As already pointed out above, the council's decision was a rational and lawful one…..[A] further point of distinction from the South Bucks case is that it is possible for an injunction to be granted where no enforcement notice has been served, and in such a case it would be necessary for the court to form its own view of proportionality. But here the necessary proportionality assessment had already been carried out by the Inspector and the Secretary of State.”

4. Counsel had submitted that the judge erred by applying too generous a rationality standard in favour of the Royal Borough in the circumstances of this case. He said that recent authority in the Supreme Court (Kennedy v Charity Commission [2014]) showed that the rationality standard was a flexible standard which fell to be adjusted according to the context, and the present context was one in which the judge should have held that there was not a wide discretion for the council, but rather only one decision which could rationally have been taken by it, namely a decision not to exercise its section 178 powers in April 2013. Lord Justice Sales said he was not persuaded that it was open to the appellants’ counsel to advance this submission on this appeal, but even if it were, he would have rejected it. “The judge [HHJ Jarman QC] was correct to regard the decision for the council as one turning essentially on matters of planning judgment, weighing up as it had to do the desirability of acting promptly to end the harm to the Green Belt and the public interest against the interests of the occupants of the land, assessed in the context where those interests had already been brought into account by the Inspector and by the Secretary of State in his decision to uphold the enforcement notice with some additional time for compliance, which had expired by the time of the council's decision.” Sales LJ added that the judge was therefore correct in allowing the council as local planning authority significant latitude in application of the rationality standard, in an entirely conventional way. "The case is very far from the context of the Kennedy decision and calls for no adjustment of the ordinary rationality standard of the kind discussed in that case."

Lord Justice Sales, with Lord Justice Floyd and Lady Justice Arden agreeing, dismissed the appeal.