McCarthy & Ors v Basildon District Council

A local planning authority may use direct enforcement under Town and Country Planning Act 1990, s 178, even where removal will interfere with Convention rights. The decision must nevertheless be proportionate and must consider all material circumstances. The presence of substantial unauthorised Gypsy or Traveller sites may evidence an immediate accommodation need, although it does not establish a right to remain on the particular site. The authority must consider reasonably available alternatives, possible homelessness duties, and whether individual health or educational circumstances make enforcement disproportionate. Equality duties require a genuine and informed consideration of their statutory objectives; referring to the duty is insufficient, but express reference is not essential where the substance of the duty has been addressed.

More than forty mainly Irish Traveller and Gypsy families occupied unauthorised caravan sites in the Green Belt within Basildon. Planning permission had been refused, enforcement notices had been upheld on appeal, and the Council resolved on 13 December 2007 to enforce the notices under s 178 of the Town and Country Planning Act 1990.

The claims challenged that decision on grounds including proportionality under Articles 8 and 1 of the First Protocol to the Convention, direct and indirect race discrimination, failure to comply with equality duties, and failure to consider accommodation need, homelessness and individual welfare circumstances. The central issue was whether the Council’s decision-making process lawfully justified removal despite the absence of sufficient authorised alternative sites.

1. Outcome. The four claims succeeded. The Council’s decisions of 13 December 2007 could not stand and required reconsideration.
2. Direct enforcement and proportionality. It was lawful in principle to use s 178 rather than seek an injunction under s 187B. The existence of a criminal breach did not make enforcement automatically proportionate. The Council retained a discretion as to whether and how enforcement should occur, and the court had to examine whether the proposed enforcement was proportionate to the interference with Articles 8 and 1 of the First Protocol.
3. Accommodation need. Need and demand were distinct, but unmet demand could result in need. Significant unauthorised encampments were evidence of a clear and immediate need under Circular 01/2006. That need did not establish a right to remain on the particular site, but it was a weighty factor favouring avoidance of eviction where reasonably possible. The Council had to consider whether sites could be identified locally or through regional co-operation.
4. Individual circumstances and homelessness. The decision had to address the possibility that the Council might owe accommodation duties after eviction, the suitability of any accommodation, and whether enforcement should be taken against all occupiers. The reports did not sufficiently address those matters or explain whether families with particularly serious health or educational needs might remain temporarily.
5. Equality duties. The prohibition on inappropriate Green Belt development was not directly discriminatory. Any indirect discrimination was capable of justification by proportionality. The s 71 duty under the Race Relations Act 1976 required a real process of consideration, balancing the disadvantage affecting Gypsies and Travellers against planning, environmental and community-relations considerations. The Council had not merely paid lip service to that duty, but its wider decision remained defective for the reasons above. Similar substantive considerations applied to disability equality duties. The gender equality argument added nothing material.