Eastwood, R (on the application of) v The Royal Borough of Windsor and Maidenhead

Where an enforcement notice has been upheld after a proper assessment of Convention rights, a local planning authority may ordinarily implement it under section 178 of the Town and Country Planning Act 1990 without a fresh judicial assessment of proportionality. A fresh assessment may become necessary only in an exceptional case involving a material change of circumstances between the original decision and implementation. The authority’s decision remains subject to ordinary public law review. In a planning context, the authority enjoys significant latitude, and the question is whether its decision falls within the range of rational decisions available to it. The appeal was dismissed because the Council rationally concluded that further delay was unjustified.

Romany Gypsies occupied agricultural Green Belt land with caravans and hardstandings installed without planning permission. The local planning authority served an enforcement notice requiring removal. Following an appeal under section 174 of the Town and Country Planning Act 1990, the Inspector recommended, and the Secretary of State decided, that planning permission should be refused, the enforcement notice upheld, and 18 months allowed for compliance. That period expired without alternative authorised pitches being identified.

The Council later resolved to clear the land under section 178. The Administrative Court dismissed the remaining judicial review challenge, which alleged irrationality or perversity. Permission had been refused for a separate proportionality challenge under Article 8 of the European Convention on Human Rights. The central issues were whether the Council irrationally failed to await an alternative site and whether the court should substitute its own judgment on enforcement and proportionality.

1. Appeal dismissed. The challenge was confined to whether the Council’s April 2013 decision to exercise its section 178 powers was irrational or perverse. The separate proportionality ground could not be resurrected on appeal.
2. The Inspector and Secretary of State had not proceeded on the premise that eviction could occur only after a suitable alternative site had been found. The 18-month period was a period of grace, allowing reasonable time for alternative accommodation and site arrangements to be progressed. It gave no guarantee that alternative accommodation would be available before eviction.
3. Absent an exceptional material change of circumstances, it was legitimate to proceed on the basis that the earlier, lawful Article 8 assessment continued to satisfy Convention requirements. No such change was shown.
4. The Council’s decision was rational. It had waited for a substantial period; the grace period had expired; the continuing occupation involved a breach of planning control and criminal law; Green Belt and wider public-interest harm continued; and the prospects of an authorised alternative site were speculative. The Council was entitled to conclude that further delay was unjustified.
5. The decision was a matter of planning judgment within the discretion conferred under section 178 of the Town and Country Planning Act 1990. The court’s task was to review legality and rationality, not to decide for itself whether enforcement was proportionate. South Bucks District Council v Porter [2003] UKHL 26 was distinguishable because it concerned the court’s own jurisdiction to grant an injunction under section 187B.
6. The ordinary rationality standard required no contextual adjustment. The case was very far from the context of Kennedy v Charity Commission [2014] UKSC 20.

• Court of Appeal (Civil Division): [2016] EWCA Civ 437 — appeal dismissed.
• Court of Appeal (permission stage): [2014] EWCA Civ 963 — permission to appeal on the separate proportionality ground was refused.
• Administrative Court: the judicial review claim was dismissed; the Council’s decision to exercise section 178 powers was held not to be irrational or perverse.
• Secretary of State: planning permission was refused, the enforcement notice was upheld, and 18 months was allowed for compliance. That decision was not challenged.