Basildon District Council v McCarthy & Ors

An authority may lawfully authorise direct enforcement under section 178 of the Town and Country Planning Act 1990 after planning permission has been refused and enforcement notices upheld. It need not reopen the planning decision or undertake a fresh search for alternative Traveller sites where the applicable policy uses the regional and local development-plan process. It must remain mindful of homelessness duties and consider affected families individually, but completed homelessness inquiries and a detailed eviction timetable are not preconditions to authorisation. Article 8 requires a proportionate balance, not a general entitlement to sites. Equality duties require due regard to relevant disadvantage and countervailing considerations, not achievement of a particular result.

More than 40 Gypsy and Irish Traveller families occupied unauthorised caravan sites in the Green Belt within Basildon District. Planning permission had been refused and enforcement notices had been upheld. On 13 December 2007, the Council resolved to authorise direct action under section 178 of the Town and Country Planning Act 1990 to secure compliance.

Collins J quashed the decision, holding that the Council had not sufficiently considered alternative sites, homelessness duties and the individual circumstances of affected families. The Council appealed from that decision, reported at [2008] EWHC 987 (Admin). The central issues were whether the Council had lawfully addressed planning need, Article 8, equality duties, homelessness obligations and individual proportionality before authorising enforcement.

1. Disposition. The Court of Appeal unanimously allowed the appeals. The Council’s decision authorised officers to take action necessary to secure compliance with the enforcement notices. It did not itself determine the precise steps to be taken or the timing of each eviction.
2. Planning and enforcement context. The refusal of planning permission, the upholding of the enforcement notices and the persistent breaches of planning control and criminal law could legitimately form the basis of action under section 178 of the Town and Country Planning Act 1990. The Council was not required to act as if the earlier planning decisions had not been made.
3. Need and alternative sites. Need for caravan pitches was not confined to a functional necessity to live in a particular district or on a particular part of the Green Belt. Family proximity could be relevant, while the Green Belt could carry substantial weight. Nevertheless, a wish to live in Basildon did not confer an entitlement to a site there. Under Circular 01/2006, site provision was to proceed through the regional and local development-plan process. In the particular planning context, failure to undertake a further search for sites or to bring forward development-plan documents did not render the decision unlawful. The refusal of temporary permissions was also relevant. This approach was consistent with O'Brien & Ors v South Cambridgeshire District Council [2008] EWCA Civ 1159.
4. Homelessness and individual circumstances. The Council had to remain mindful of its duties under Part VII of the Housing Act 1996 and consider the individual cases of those affected. However, completion of homelessness inquiries was not a precondition to authorising enforcement. Those duties could be addressed when deciding how and when enforcement would be carried out. Individual consideration did not require the authorisation decision to specify the precise moment or manner of each eviction. The personal circumstances had been supplied to members and considered in a closed session.
5. Human rights and equality. Article 8 did not impose a general social-policy obligation to provide enough authorised sites to satisfy demand. The unlawful establishment of homes on environmentally protected land weakened the claim to protection, although personal circumstances remained relevant. The Race Equality and Disability Equality Duties required due regard to relevant disadvantage and countervailing factors, rather than achievement of a particular outcome. The Council had lawfully performed the required balancing exercise.

• Court of Appeal (Civil Division): allowed the Council’s appeals and held that the decision to authorise action under section 178 was lawful: [2009] EWCA Civ 13.
• Administrative Court: Collins J quashed the Council’s decision of 13 December 2007 for insufficient consideration of alternative sites, homelessness duties and individual circumstances: [2008] EWHC 987 (Admin).