Smith, R (on the application of) v South Norfolk Council

The power under section 178 of the Town and Country Planning Act 1990 is discretionary. Its possible use in a manner incompatible with Article 8 does not require the provision to be read down or require prior court approval. The lawfulness and proportionality of a proposed eviction can be reviewed in judicial review proceedings.

Where material circumstances change before enforcement, including the availability of alternative accommodation, the authority must reconsider whether enforcement remains proportionate. Under section 71 of the Race Relations Act, due regard requires a genuine consideration process. It does not dictate the outcome and may be fulfilled through an existing planning process.

The claimant and other members of an extended Romany gypsy group occupied land at Denton Road in South Norfolk with caravans. Enforcement notices required the residential use to cease, and the group’s continued occupation later became a criminal offence.

The Council refused planning applications for alternative sites and decided to use section 178 of the Town and Country Planning Act 1990 to remove the group. The claimant challenged decisions refusing to postpone enforcement while planning applications and appeals were pursued. The challenges alleged unlawful use of section 178, irrationality and disproportionality under Article 8, and failure to comply with section 71 of the Race Relations Act. During the proceedings, permission was granted for an alternative site at Rushall Road.

1. Section 178. The claim that section 178 could not be used for a residential eviction, or could be used only after an injunction or other prior court approval, failed. The court applied R (O’Brien) v Basildon DC [2006] EWHC 1346 Admin. Section 178 is a discretionary power and is not inherently limited to non-residential enforcement. A local authority may instead prosecute or seek an injunction under section 187B, and in some circumstances may take no immediate action.
2. The possibility that a discretionary power might be exercised incompatibly with Article 8 does not create statutory incompatibility requiring section 3 of the Human Rights Act 1998 to be used to read words into section 178. An unlawful or disproportionate decision remains challengeable by judicial review, with interim relief available where appropriate.
3. The court applied the proportionality approach in R (O’Brien) v Basildon DC and followed the approach to present circumstances in R (SB) v Governors of Denbigh High School [2006] UKHL 15 and Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Judicial review required an intensive assessment of the interference with Article 8 rights, but it was not a merits appeal. The Council retained a discretionary area of judgment, including on planning matters and the need for effective enforcement.
4. The Council had considered the relevant changes in circumstances, including Circular 1/06, the planning prospects of alternative sites and the likely timing of their availability. Its decisions to refuse further delay were not irrational or disproportionate when assessed at the relevant dates. Effective enforcement of the criminal law could properly carry substantial weight.
5. The later grant of planning permission for Rushall Road was a material change. The Council could not simply rely on its earlier decisions. It had to make a fresh and up-to-date decision on whether to use section 178, and if so on what terms and timetable. The grounds of challenge to the earlier decisions nevertheless failed.
6. Section 71 of the Race Relations Act imposes a duty of due regard to eliminating unlawful racial discrimination, promoting equality of opportunity and promoting good relations between racial groups. The duty requires a relevant consideration process, but does not dictate a particular result. It may be fulfilled through the planning process where the relevant considerations have in substance been addressed. The Council had sufficiently considered the group’s ethnic and cultural needs, access to services, human rights and race-relations implications.