Coates & Ors v South Bucks DC

A judge deciding whether interference with a Convention right is proportionate must give reasons which enable the parties to understand the decision. Where competing factors require balancing, the reasons should ordinarily explain why some factors outweigh others. No prescribed tabular analysis is required. A careful judgment may sufficiently demonstrate the balance where the relevant considerations and conclusion are clear.

Immediate enforcement of a planning injunction may be proportionate despite serious interference with occupiers’ homes. Relevant considerations include the site’s planning sensitivity and history, deliberate breaches of planning control and court orders, responsibility for delay, local connections, hardship, alternative accommodation and the prospects of obtaining permission.

Travellers occupied land which they owned on a sensitive green-belt site. Their occupation and development of the land breached planning controls, an enforcement notice and subsequent court orders. The local planning authority obtained an injunction requiring them to leave.

Penry-Davey J accepted that the injunction should be granted and refused to suspend it until the final determination of a proposed planning application. He allowed one month for most defendants to comply and two months for the first appellant. Four defendants appealed, arguing that immediate enforcement was a disproportionate interference with their homes under Article 8 of the European Convention on Human Rights.

The central issues were whether the judge had adequately explained the proportionality balance and whether eviction before the planning proceedings ended was proportionate.

1. Appeal dismissed by a majority. Lord Phillips MR and Neuberger LJ held that the short suspensions ordered by Penry-Davey J were proportionate. Sedley LJ dissented and would have deferred enforcement until the planning inquiry had been determined.

2. Per Lord Phillips MR, a judgment must make clear to the parties why the decision was reached. Where competing factors have been balanced, it will usually be possible and desirable to explain why some outweighed others. Penry-Davey J had carefully identified the material facts and considerations. Although he largely allowed them to speak for themselves, the balance strongly supported his order.

3. Neuberger LJ considered that the judge had performed the required balancing exercise. A full judgment which identifies and discusses the competing factors may adequately reveal that exercise even if it does not separately describe every step in the judge’s thought process. An appellate court should intervene where the balance was not undertaken or was significantly defective, but should avoid treating imperfections of expression as errors of law.

4. The factors favouring prompt enforcement included the site’s sensitive green-belt character and adverse planning history; the appellants’ knowledge of the enforcement notice; the flagrant and continuing development; deliberate breaches of court orders; their responsibility for the absence of a valid planning application at the hearing; weak local connections; and the remote prospects of permission. The shortage of alternative sites, the appellants’ lack of another home, their health and family circumstances, and the schooling of children weighed in favour of delay.

5. The majority concluded that maintaining the integrity of the planning regime made interference with the appellants’ Article 8 rights necessary. The hardship did not outweigh the particularly serious and persistent breaches. The first appellant was allowed two months to comply and each other appellant one month.

6. Sedley LJ considered that proportionality ordinarily requires structured consideration of the importance of the objective, the connection between the measure and that objective, and whether the right is impaired more than necessary. He regarded the absence of such an assessment below as an error of law. In his view, immediate collective eviction was not shown to be necessary when individual sanctions could address defiance of the court’s orders and the planning appeal remained pending.

1. Court of Appeal (Civil Division): By a majority, dismissed the appeal and varied the dates for compliance with the injunction. Sedley LJ dissented.

2. Queen’s Bench Division: Penry-Davey J granted the local planning authority an injunction on 27 January 2004. He allowed two months for the first appellant and one month for the other appellants to comply, declining to suspend enforcement until the planning application had been finally determined.

3. Permission proceedings: Carnworth LJ initially refused permission on paper. Sedley LJ subsequently granted permission on the issue of time for compliance and stayed implementation pending the appeal.