Claire Wilson v Wychavon District Council

A statutory rule which treats residential caravans less favourably than dwelling houses may be indirectly discriminatory against Gypsies and Travellers. The question is whether the difference in treatment is objectively and reasonably justified. Parliament may adopt a bright-line rule where there are substantial material differences between the environmental impact of the activities concerned. The court must also consider safeguards, including the fact that the power is discretionary and must be exercised compatibly with Convention rights. In assessing proportionality, the court may use parliamentary materials as background information, but may not investigate debates to criticise the legislative process or infer that Parliament failed to consider an issue.

The claimant, a Romany Gypsy, occupied land with other Gypsies after a planning application was lodged. The defendant council issued enforcement and stop notices. The judicial review claim was dismissed by consent, leaving a claim for a declaration that section 183(4) of the Town and Country Planning Act 1990 was incompatible with article 14 of the Convention.

The provision protected the use of a building as a dwelling house from a stop notice, but gave no equivalent express protection to a residential caravan. The claimant argued that this had a disproportionate discriminatory impact on Gypsies and Irish Travellers. The central issues were the use of Hansard in assessing proportionality and whether the distinction between buildings and caravans was justified.

1. Indirect discrimination and justification. It was accepted that section 183(4) had a disproportionate impact on Gypsies and Travellers and was indirectly discriminatory within article 14. The State therefore had to provide objective justification. The vulnerable position of Gypsies required special consideration, but did not confer immunity from generally applicable planning laws.
2. Hansard. The court was bound by Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Parliamentary debates could provide background information about the social problem and legislative purpose, but could not be examined to determine whether Parliament had considered the discriminatory effect of the provision or to criticise the legislative process. The absence of debate on the issue therefore could not count against the legislation.
3. Proportionality. There was generally a marked difference in immediate environmental impact. The stationing of a caravan could rapidly be accompanied by hardstanding, roadways and other development, whereas a change of use of an existing building to residential use would usually cause less immediate environmental damage. The distinction was not absolute, but legislation could adopt a bright-line rule based on the general difference.
4. The distinction was between an inability to issue a stop notice against a dwelling house and a discretionary power to issue one against a caravan. The power did not require a planning authority to act without regard to Convention rights. Section 6(1) of the Human Rights Act 1998 required the authority to act compatibly with those rights, and judicial review remained available.
5. The court was not satisfied under section 4(2) of the Human Rights Act 1998 that section 183(4) was incompatible with a Convention right. The declaration was refused. Permission to appeal was refused, although the time for lodging an appellant’s notice was extended to 28 days. Costs were ordered in the usual manner, subject to enforcement against the publicly funded claimant requiring leave.

The judgment was a first-instance determination of a claim for a declaration following the dismissal by consent of the claimant’s earlier judicial review proceedings. Permission to appeal was refused, with 28 days allowed for lodging an appellant’s notice.