Mitchell & Anor, R (on the application of) v Horsham District Council

A local planning authority may use its power under Town and Country Planning Act 1990, section 178, to enforce a valid and effective enforcement notice. The power is not an ancillary remedy which may be used only after prosecution or an injunction has been pursued.

Where direct action interferes with Convention rights, the authority must show that the interference is proportionate and justified under Article 8(2). The decision-maker must consider the relevant circumstances and balance the public interest in enforcing planning control against the affected person’s private and family life and home. No exhaustive, formulaic list of procedural conditions applies.

The claimants, Romany Gypsies living in caravans on land at North Lane, Ashington, challenged three decisions by Horsham District Council to take direct action under section 178 of the Town and Country Planning Act 1990. The action was intended to remove caravans stationed in breach of valid and effective enforcement notices.

They argued that direct action was disproportionate and irrational because it interfered with their rights under Articles 6 and 8 of the Convention, and that the Council had failed to consider their personal and family circumstances. The central issues were whether Article 6 was engaged, whether direct action was an impermissible ancillary remedy, and whether the Council’s assessment under Article 8(2) was lawful.

1. Article 6. The Council’s decision to take direct action was administrative and did not determine the claimants’ civil rights. Those rights had already been addressed through the procedures relating to the valid enforcement notices, which were subject to appeal and judicial review. The claimants retained the ability to apply for planning permission. Article 6 was therefore not engaged.
2. Section 178 power. The power to enter land and carry out steps required by an enforcement notice is available once the notice is valid and effective, the compliance period has expired and the appeal process has ended. It is not ancillary to prosecution or an injunction. A planning authority may choose direct action instead of seeking an injunction where section 178’s conditions are satisfied.
3. Article 8 and proportionality. Removing the caravans engaged the claimants’ Article 8 rights. The Council therefore had to establish that the interference was lawful, pursued the legitimate aim of safeguarding the environment, and was proportionate. Proportionality required consideration both of whether the action was appropriate and necessary and of whether it imposed an excessive burden on the claimants’ private and family life and home.
4. The court rejected an exhaustive formula requiring every proposed safeguard identified by the claimants to be satisfied. Each case depends on its facts. The Council’s report showed that it had considered the planning history, environmental harm, policy, available alternatives, the claimants’ circumstances, housing, education and medical needs, the effect on other residents, and the urgency and proportionality of direct action.
5. The Council’s conclusion that direct action was justified was rational and open to it. The proportionality challenge and the material-considerations challenge therefore failed. The application was dismissed. Permission to appeal and a stay were refused. There was no order as to costs, subject to assessment of the publicly funded costs.

First-instance judicial review proceedings. The judgment records no earlier decision in the same litigation.