Butler, R (on the application of) v Wychavon District Council

A decision to prosecute for breach of a planning enforcement notice is theoretically reviewable, but successful judicial review will be rare. Where Convention rights are engaged, the relevant question is proportionality rather than irrationality. The court must balance the claimant’s private and family life against the planning objectives, including Green Belt protection and enforcement of planning control.

The personal importance of a site is weaker where the claimant knowingly created a home there in breach of an existing enforcement notice. A pending planning appeal or the possibility of future planning permission does not ordinarily require a local authority to suspend prosecution. The criminal court may consider abuse of process, Convention rights and penalty.

The claimant, a Romany gypsy, bought land in the Green Belt where enforcement notices already prohibited the construction works and the siting of a caravan. She and her family moved onto the land and applied for permanent planning permission. The application was refused, and the defendant Council reaffirmed its decision to prosecute for breach of the enforcement notices.

The claimant challenged that decision by judicial review. She relied on her family’s housing, health and educational circumstances, Article 8 of the Convention, and Circular 1/06 concerning gypsy and traveller sites. The central issues were whether the Council had failed to take relevant matters into account, whether prosecution was disproportionate, and whether it should have awaited the planning appeal or considered temporary permission.

1. The claim was dismissed. The decision to prosecute was not unlawful or disproportionate.

2. A decision to prosecute is in theory amenable to judicial review, but the jurisdiction is to be exercised only in exceptional circumstances. The approach in R v Inland Revenue Commissioners ex parte Mead [1993] 1 All ER 773 was applicable. The criminal courts provide an additional safeguard because they can address abuse of process, Article 8 arguments and penalty.

3. Article 8 required a proportionality assessment. The claimant’s family and housing circumstances were relevant, but the strength of the interference was reduced because the family had established its home on land subject to an existing prohibition, with knowledge of that prohibition before the prosecution decision. The Council was entitled to regard the development as seriously harmful to the openness, character and appearance of the Green Belt.

4. Circular 1/06 did not displace Green Belt policy. Gypsy and traveller sites remained subject to the presumption against inappropriate Green Belt development. The Council was not required, on this permanent planning application, to grant or consider temporary permission where the particular development was regarded as seriously damaging.

5. The Council was not required to await the planning appeal before prosecuting. The reasoning in R (O’Brien) v Basildon District Council [2006] EWHC 1346 (Admin), paras 174–175, supported the conclusion that prospective planning permission or an appeal did not provide a defence to earlier non-compliance with an effective enforcement notice, although the criminal court could consider planning matters when determining penalty.

6. The Council’s decision was therefore not a failure to have regard to a relevant consideration and was not disproportionate. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment and the applicable statutory costs order.