O'Brien & Ors v South Cambridgeshire District Council

A local planning authority considering an injunction under section 187B must comply in substance with its duty under Race Relations Act 1976 section 71. The duty applies to the decision to pursue planning enforcement. It does not require a separate formal race impact assessment where the authority has actually considered the relevant racial, cultural, health and educational effects.

An application under section 187B invokes the court’s original discretion. A defect alleged in the authority’s decision to apply will ordinarily be relevant to that discretion, rather than depriving the court of jurisdiction. The site-provision power in Caravan Sites and Control of Development Act 1960 section 24 creates no duty to provide an alternative site before enforcement action.

Six Gypsy appellants occupied mobile homes on land in South Cambridgeshire in breach of planning control. The Secretary of State had dismissed their planning appeals and upheld an enforcement notice, having considered their ethnicity, personal circumstances, health and educational needs, and the shortage of sites.

A Deputy High Court Judge granted the council an injunction under Town and Country Planning Act 1990 section 187B, delayed until the end of the school term. The appellants’ challenge was limited to whether the council had to consider or make an alternative Gypsy site available before seeking that relief, under Race Relations Act 1976 section 71 or Caravan Sites and Control of Development Act 1960 section 24.

1. Appeal dismissed. An application under Town and Country Planning Act 1990 section 187B invokes the court’s original, broad discretion. It is not a supervisory jurisdiction over the council’s decision to apply. An alleged failure by the authority to consider a material matter will ordinarily be relevant to whether the injunction should be granted, but will not invalidate the application or remove the court’s jurisdiction. The court followed South Bucks District Council v Porter, [2003] UKHL 26.

2. The Deputy Judge erred in holding that the section 71 duty and the associated Code did not apply to a council’s decision whether to seek an injunction. That decision is the carrying out of a function. However, the duty is one of substance rather than form. It does not require an express reference to section 71 or a separate formal race impact assessment if the authority has had due regard to the relevant considerations.

3. On the evidence, the council had done so. Its reports identified the appellants as an ethnic minority, recognised the likely effects of displacement on health, education and access to services, referred to race-equality obligations, and later drew attention to their cultural aversion to “bricks and mortar” accommodation. No relevant matter was shown to have been overlooked.

4. Section 24 of the Caravan Sites and Control of Development Act 1960 was only a power to acquire land and provide caravan sites. It imposed no duty to do so and did not address the distinct planning question of identifying a site suitable for that use. The former statutory duty to provide adequate Gypsy accommodation had been repealed.

5. The council had considered searching for alternative sites in parallel with injunction proceedings. It was entitled to reject postponement or temporary permission pending the Gypsy and Traveller development plan process, because of the continuing serious harm to the countryside. Its balanced and proportionate decision was entitled to considerable weight. The Deputy Judge’s error as to the formal application of the race duty did not vitiate his discretionary decision to grant the injunction.

• Court of Appeal (Civil Division): The appeal was dismissed: [2008] EWCA Civ 1159.
• High Court: Andrew Edis QC, sitting as a Deputy High Court Judge, granted a section 187B injunction on 30 November 2007, with its operation deferred until the end of the Easter term 2008.
• High Court: An earlier challenge under Town and Country Planning Act 1990 section 288 to the Secretary of State’s planning decision was dismissed on 20 December 2006. Permission to appeal from that decision was refused.