O'Brien & Anor, R (on the application of) v Basildon District Council

A local planning authority may use Town and Country Planning Act 1990, section 178, to remove residential caravans even where Article 8 rights are engaged. Section 187B does not provide an exclusive alternative requiring prior judicial involvement. The authority must nevertheless assess proportionality in the particular circumstances.

Before taking direct action, it must weigh the planning harm, the need for effective enforcement, the urgency of the remedy, the personal impact of removal, alternative accommodation, and the occupants’ prospects of success in any pending planning application or appeal, including the likely timetable. Failure to consider those prospects is failure to take account of a material consideration and may make the decision disproportionate and unlawful.

The claimants were two groups of Irish Traveller families occupying adjoining plots in the Green Belt near Basildon. Effective enforcement notices required cessation of residential caravan use and removal of caravans and related structures. Continued occupation constituted criminal offences under section 179 of the Town and Country Planning Act 1990.

Basildon District Council resolved to enforce the notices by direct action under section 178 rather than by seeking injunctions under section 187B. The claimants challenged that decision, principally on Article 8 and ordinary public law proportionality grounds. Several claimants had pending appeals against refusals of planning permission, due to be heard shortly after judgment. The central issue was whether the Council’s decision to use section 178 was lawful.

1. Disposition. The Council’s decision of 9 June 2005 was quashed. The Council was awarded no relief against the claimants, and costs were ordered in their favour with a Legal Aid assessment. Leave to appeal was refused.
2. Relationship between sections 178 and 187B. Section 187B creates an original jurisdiction in which the court decides whether an injunction is just and proportionate. Judicial review of a section 178 decision is different: the court may intervene only if the authority’s decision is unlawful. Section 187B is not an exclusive route for residential eviction, and the interposition of the court is not inherently necessary to make direct action proportionate under Article 8.
3. Proportionality. Proportionality concerns both the end sought and the means used. In deciding whether to use section 178, the authority must consider the planning and environmental harm, the need for a swift or urgent remedy, the importance of enforcing an effective enforcement notice and the criminal law, and the personal circumstances and impact of removal. It must also consider whether the occupants have lawful or suitable alternative accommodation.
4. Prospects of planning success. Where removal is proposed, rather than prosecution alone, the authority must consider the occupants’ prospects of success in a planning application or appeal and the timing of its resolution. Relevant material may include Government policy, recent Inspector decisions and the Development Plan. A detailed prediction is unnecessary, but the authority should distinguish a hopeless case from one with reasonable or strong prospects.
5. The Council’s reports did not analyse the claimants’ prospects of success or the imminence of the appeals. The January reconsideration did not cure that omission. Given the pending appeals, the claimants’ reasonable prospects and the likely disruption of removal followed by possible reinstatement, direct action was not shown to be proportionate.
6. The position of the claimant without a pending appeal required separate consideration. The Council could reconsider the use of section 178 in light of changed circumstances, but could not act on the quashed decision.

This was a first-instance judicial review. The judgment records that the Court of Appeal granted permission in the earlier proceedings and reinstated interim relief, but no appellate decision on the merits is stated.