Wilson, R (on the application of) v Wychavon District Council & Anor

For the purposes of article 14, a facially neutral planning rule that disproportionately burdens residential caravans engages indirect discrimination where article 8 is within its ambit and requires objective justification. Parliament may adopt a bright-line exemption for dwellinghouses where caravans can be brought rapidly onto land and cause urgent environmental harm. A stop notice may require a caravan occupier to move, but need not end residence. A less restrictive alternative is relevant but not decisive. Proportionality is assessed when the issue arises, with intense scrutiny for discrimination on sensitive grounds, while preserving a real legislative discretionary area. The qualified exemption for temporary stop notices did not require an exemption for ordinary stop notices. The difference in treatment was justified.

The appellant, a Romany gypsy, challenged the compatibility of section 183(4) of the Town and Country Planning Act 1990 with article 14 read with article 8. The provision exempted the use of a building as a dwellinghouse from an ordinary stop notice but did not exempt the stationing of a residential caravan.

The appellant had occupied land in Worcestershire with residential caravans after unauthorised development. The claim concerning the particular stop notice was dismissed by consent. Crane J dismissed the statutory compatibility challenge, reported at [2006] JPL 1530. The appeal concerned whether the absence of a caravan exemption was indirectly discriminatory and objectively justified.

Disposition

The appeal was dismissed unanimously. Richards LJ gave the principal judgment, with Moses LJ and Sir Anthony Clarke MR agreeing.

1. The Secretary of State conceded that section 183 operated within the ambit of article 8, that residential caravans disproportionately affected gypsies and travellers, and that the provision was indirectly discriminatory. The issue was objective justification.
2. Justification required a legitimate aim and a reasonable relationship of proportionality between the means used and the aim pursued. Proportionality had to be assessed when the issue arose. The court had to apply intense or severe scrutiny to discrimination on sensitive grounds, but Parliament retained a real discretionary area of judgment.
3. The court followed the approach in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816. Parliamentary debates could provide limited background information, but the court could not criticise legislation because Parliament had failed to debate or explain the relevant policy. The court also rejected the submission that a less restrictive alternative was an integral requirement of article 14 proportionality, although such an alternative could assist in assessing the cogency of the justification.
4. There were material differences between dwellinghouses and residential caravans. Construction of a dwellinghouse could generally be stopped before occupation, and a change of use of an existing building usually caused less immediate environmental harm. Caravans could be brought rapidly onto land and associated works could cause serious or irreparable harm to public amenity. A caravan occupier might comply by moving the caravan rather than ceasing to live in it.
5. The qualified exemption under regulation 2 of the Town and Country (Temporary Stop Notice) (England) Regulations 2005 did not govern ordinary stop notices. Temporary notices were issued with greater urgency, before a full enforcement decision, and carried a greater risk of error. The stronger case for a qualified exemption in that regime did not make the absence of an ordinary-stop-notice exemption disproportionate.
6. The duty under section 6 of the Human Rights Act 1998 required individual decisions to respect article 8 rights and provided significant, though not equivalent, protection. The bright-line distinction made by Parliament was within its discretionary area of judgment. No declaration of incompatibility was required.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the dismissal of the compatibility challenge: [2007] EWCA Civ 52.
• High Court (Administrative Court) Crane J dismissed the challenge to section 183(4), in a judgment reported at [2006] JPL 1530.