Lee, R (on the application of) v Nuneaton & Bedworth Borough Council

A local planning authority may use its powers under section 178 of the Town and Country Planning Act 1990 even though it previously obtained an injunction under section 187B. The availability of judicial review provides protection against unlawful enforcement.

Before enforcing against gypsies, the authority must act reasonably and consider relevant homelessness duties, including the availability and suitability of accommodation and any properly evidenced cultural aversion to conventional housing. Those duties do not create a general right to remain unlawfully on land pending an appeal or housing decision.

The claimants, gypsies occupying caravans on an unauthorised Green Belt site, challenged the Council’s decision to remove the caravans under section 178 of the Town and Country Planning Act 1990. The Council had previously obtained an injunction under section 187B, and a planning inspector’s decision had been upheld on appeal.

Shortly before the proposed removal, the claimants made a homelessness application under Part VII of the Housing Act 1996. The central issues were whether the Council was barred from using section 178 after pursuing an injunction, whether Article 6 required a further hearing, and whether the homelessness application required enforcement to be deferred.

1. Section 178 enforcement. The Council was not barred from using section 178 merely because it had previously proceeded under section 187B and obtained an injunction. Section 178 required no further court order, and the legality of the administrative action could be reviewed by the Administrative Court. The claimants therefore had equivalent judicial protection.
2. Article 6. The use of section 178 did not breach Article 6 of the ECHR. The planning merits and enforcement issues had already received full consideration by the planning inspector and the Administrative Court, both independent tribunals.
3. Homelessness duties. The late homelessness application was a highly relevant consideration when the Council decided the timing of removal. The committee should specifically have considered the possible lack of suitable accommodation, the claimants’ possible cultural aversion to conventional housing and the Council’s duties under the Housing Act 1996. The January decision should therefore have been deferred to permit proper inquiries.
4. The housing duties had to be applied reasonably, but they did not override planning obligations or confer a right to remain unlawfully on the land pending an appeal or housing determination. If reasonable inquiries disclosed no alternative site and no rooted aversion to temporary conventional accommodation, such accommodation could properly be offered or required for a short period.
5. The Council was entitled to reconsider when enforcement should take effect, taking account of the individual circumstances of the families, including children’s schooling. The claimants were required to co-operate with the inquiries. The section 178 power was lawful in principle, and the appropriate order was no order.

The planning inspector refused permission and upheld the enforcement notice, extending the compliance period. Forbes J dismissed an appeal against that decision. HHJ Rundell later granted an injunction requiring the occupiers to leave by 31 December 2003. The present judicial review concerned the Council’s subsequent decision to use section 178.