O'Brien & Ors v South Cambridgeshire District Council [2008] EWCA Civ 1159

[2008] EWCA Civ 1159Case No C3/2008/0042
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
Andrew Edis QC sitting as a Deputy High Court Judge
HQ 07X02458
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/10/2008
Before
LORD JUSTICE KEENELORD JUSTICE CARNWATHLORD JUSTICE MAURICE KAY
Between
Margaret O’Brien, Hannie Flynn, Ann Sheridan, Nellie Quilligan, Elizabeth Sheridan & Kathleen SheridanAppellantsSouth Cambridgeshire District CouncilRespondent
Mr Robin Allen QC and Mr Stephen Cottle (instructed by South West Law) for AppellantsMs Saira Sheikh (instructed by Messrs Sharpe Pritchard) for RespondentHearing Hearing date: Thursday 2 nd October 2008
Judgment
[1]This appeal raises yet further issues about the approach to be adopted by the courts towards the granting of injunctions under section 187B of the Town and Country Planning Act 1990 (“the 1990 Act”), to restrain breaches of planning control.[2]The appellants are six travellers, who it is agreed are to be regarded as having Gypsy ethnicity. They arrived at the land in question, known as Victoria View, Smithy Fen, in 2003, and they occupy mobile homes on plots on that land in breach of planning control. There had been an appeal to the Secretary of State against refusal of permission to develop the land as a gypsy caravan site and against an enforcement notice issued by the local planning authority, the respondent to this present appeal. The Secretary of State by a decision-letter dated 7 December 2005 rejected the appeals, save that he extended the period for compliance with the enforcement notice from 2 months to 12 months, which would “allow the residents time to find somewhere to live and would minimise the disruption of the education of the children of school age.”[3]The essential reasoning of the Secretary of State in deciding to reject the appeals can be found in paragraph 37 of his decision letter, where he said this:
“The Secretary of State considers that the proposals are seriously harmful to the character and appearance of the open countryside, and that these effects could not be overcome by landscaping. For those reasons, the proposals fail to comply with policy HG23 of the Local Plan and are contrary to development plan policies for the protection of the countryside. The Secretary of State also considers that allowing these appeals is likely to create a precedent for further development at Smithy Fen, which would be undesirable given the adverse impact on the character and appearance of the countryside already caused by existing lawful development. The Secretary of State has carefully considered the general need for sites in the area, the appellants’ need for a site, the availability of alternative sites, and the health and education needs of the appellants and their children. He concludes that these factors do not outweigh the serious harm to the countryside done by the appeal proposals. He has considered the possibility of temporary planning permission but has concluded that the proposals would cause serious harm to the countryside, which could not be mitigated by conditions.”
It is also relevant to observe that the Secretary of State had, in the course of his decision, referred to the status of the appellants as gypsies. He stated at paragraph 28:
“The Secretary of State has considered the health and education needs of the majority of the appellants on the basis that they are Gypsies for planning purposes, and has accordingly given these needs greater weight than the Inspector (IR13.51). He has also considered the general need for Gypsy sites in the area, the appellants’ personal needs for a site, and the availability of alternative sites.”
(emphasis added). So he clearly recognised the gypsy status of the appellants and the significance of that, as well as taking account of their health care needs and the educational needs of their children.[4]The Secretary of State had earlier acknowledged in his decision that there was a general need for further gypsy sites in the East of England, though he commented that the need in South Cambridgeshire was unclear in the absence of a quantitative assessment of need.[5]He had also given express and detailed consideration to the possibility of a grant of temporary planning permission while an alternative site was being sought. He concluded that he did not consider that temporary planning permission was justified, given that the development would cause serious harm to the countryside and that there was “insufficient certainty that the Council would identify sites for the occupants in that time period.”[6]That decision was challenged in the High Court under section 288 of the 1990 Act but without success. The applications were dismissed by His Honour Judge Gilbart, QC, sitting as a Deputy High Court Judge, on 20 December 2006. He found that the Secretary of State had performed the kind of balancing exercise required by this court’s decision in Lough v. First Secretary of State [2004] 1 WLR 2557 so as to satisfy Article 8 of the European Convention on Human Rights (“ECHR”)and that the decision was not legally flawed. Permission to appeal against that High Court decision to this court was refused both on the papers and at an oral hearing.[7]However, the enforcement notice was not complied with, and on 17 July 2007 the respondent planning authority issued an application for an injunction under section 187B of the 1990 Act. Before doing so, the relevant sub-committee of the respondent had considered two reports of its officers on the options available to it and it gave further consideration to the matter subsequently on 3 August 2007. It will be necessary in due course to consider the contents of these reports.[8]Section 187B was a subsequent addition to the 1990 Act, inserted by the Planning and Compensation Act 1991 as a result of a report by Robert Carnwath, QC, as my Lord at that time was. Up until this new section came into force on 2 January 1992, local planning authorities had had to rely on more general powers under the Local Government Act 1972, a course of action which had given rise to difficulties. Section 187B(1) and(2) is in the following terms:
“(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part. (2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.”
The application eventually came before Mr Andrew Edis, Q.C., sitting as a Deputy High Court Judge. In a lengthy and thorough reserved judgment, he dealt with a large number of issues, many of which are no longer live. Ultimately he granted an injunction on 30 November 2007 requiring the appellants and the other defendants to cease using the land for the siting of residential mobile homes and/or caravans, but allowed them a further period of over three months in which to do so, so that the order would come into force immediately after the end of the Easter term 2008 at the local primary school, 21 March 2008.[9]Limited permission to appeal to this court was granted by Waller LJ on 6 March 2008, together with a stay of the injunction. The limitation has not been challenged by way of a renewed application in respect of the grounds refused permission, and Mr Allen Q.C. on behalf of the appellants made it clear at the outset of the hearing that the appeal was indeed being pursued only in respect of the issue identified by Waller LJ. In those circumstances the terms of the grant of permission to appeal define the issue which is to be determined. The grant reads as follows:
“Granted, but limited to the question of whether the council had an obligation to consider making and/or to make another site available before seeking injunctive relief, whether by virtue of section 71 of the RRA and/or because of the power under section 24 of the CCDA.”
[10]Those abbreviations refer respectively to the Race Relations Act, 1976, which I shall refer to as “the RRA”, and to the Caravan Sites and Control of Development Act 1960 (“the 1960Act”). The RRA, section 71, provides at subsection (1):
“Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need- (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups.”
An English district council is one of the specified bodies. Section 71C(1) empowers the Commission for Racial Equality to issue a code of practice “containing such practical guidance as the Commission thinks fit in relation to the performance by persons of duties imposed on them by virtue of subsections (1) and (2) of section 71.” By section 71C(11), if any provision of such a code appears to a court or tribunal to be relevant to any question arising in the proceedings it shall be taken into account in determining that question. Paragraph 3.16 of the Code of Practice on the Duty to Promote Race Equality published by the CRE under section 71(C) of the Act, directs the decision maker’s attention to the following:
“b. Could the policy or the way the function is carried out have an adverse impact on relations between different racial groups? c. Is the adverse impact, if any, unavoidable? Could it be considered to be unlawful racial discrimination? Can it be justified by the aims and importance of the policy or function? Are there other ways in which the authority’s aims can be achieved without causing an adverse impact on some racial groups? d. Could the adverse impact be reduced by taking particular measures?” (a) to eliminate unlawful racial discrimination; and (b) to promote equality of opportunity and good relations between persons of different racial groups.”
[11]Section 24 of the 1960 Act states by subsection (1):
“A local authority shall have power within their area to provide sites where caravans may be brought, whether for holidays or other temporary purposes or for use as permanent residences, and to manage the sites or lease them to some other person.”
Later subsections make it clear that a local authority is also empowered to acquire land for a caravan site either voluntarily or, where it appears to them that a caravan site or an additional caravan site is needed in their area, compulsorily subject to authorisation by the Secretary of State: section 24(5) and (6).[12]It should be noted that section 24 provides a power for local authorities; it does not impose any duty on them. There was at one time a statutory duty resting on certain local authorities – in rural areas like Cambridgeshire, the county council, not the district councils – to provide adequate accommodation for gypsies residing in or resorting to their area “so far as may be necessary”. This was the effect of section 6 of the Caravan Sites Act, 1968, but Parliament decided to remove that duty, which it did when repealing section 6 by the Criminal Justice and Public Order Act, 1994. I would also observe that section 24 of the 1960 Act is concerned with land acquisition and the provision of sites. It does not deal with the identification of land suitable in planning terms for such use nor with the obtaining of planning permission for such a use, a process which historically has tended to prove somewhat controversial.[13]The appellants’ case is put in two different ways. It is submitted first by Mr Allen that the respondent authority failed to take account of these statutory provisions, including its duty under the RRA, and that in consequence its decision to apply to the court for an injunction under section 187B was ultra vires, with the result that the court had no power to grant an injunction. Alternatively it is contended that, if the application was properly before the court, the failings on the part of the respondent should have led the court to exercise its discretion so as to refuse the injunction. In both forms of the argument, the failing on the part of the respondent is said to be the failure to consider making another site available as a gypsy caravan site or the failure to make such a site available.[14]This takes one to the three reports by officers of the respondent to which I referred earlier, it being agreed that the sub-committee in each case accepted the recommendations of the officers. The first report was to a meeting of the sub-committee on 31 January 2007. It dealt with the options available to the respondent in respect of the continuing breaches of planning control on the land in question. It identified four options available, as follows:
“1. Take no action – pending the results of the GTDPD, i.e. in view of the Travellers’ personal circumstances 2. Invite a temporary planning application – pending the results of the GTDPD 3. Take legal action – by way of an injunction to encourage the occupants to relocate. There is always the risk the Court may not agree with this approach although they have been supportive up to now 4. Land clearance – Take action under section 178 of the TCPA to clear the land.”
It then referred to the Secretary of State’s recent circular on Travellers and Gypsies, Circular 1/2006, saying that the advice “… states that where there is unmet need but no available alternative Gypsy and Traveller site provision in an area, but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission. Such circumstances may arise, for example, in a case where local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified.”[15]“DPD” stands for “development plan document”, which under the new system of development plans introduced by the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”) becomes part of the development plan for the area for development control purposes, once it has finally been adopted: see sections 38(3) and (6) of the 2004 Act. The “GTDPD” referred to in the second and third options is one such development plan document which this respondent was preparing, entitled Gypsy and Traveller Development Plan Document. Under the “plan-led system” now in operation under the 1990 Act and the 2004 Act, the development plan is of great importance in the making of decisions as to whether planning permission should be granted or not, because such decisions must be made in accordance with the development plan for the area, unless material considerations indicate otherwise: see section 70(2) of the 1990 Act and section 38(6) of the 2004 Act.[16]The report then continued:
“The Circular clearly requires Planning Authorities to consider on a without prejudice basis as to the final decision, whether there’s a reason to grant a temporary consent to cover the period until a Development Plan Document is in place. In effect, a balance has to be struck between the harm caused by the on-going breach of control and the harm to those in breach i.e. putting the occupiers back on the road, difficulties in accessing education and medical services. In this case, after very careful consideration of all the relevant issues, the Council decided that this approach was inappropriate. Indeed, the same conclusion was reached by the Secretary of State in all the relevant cases in this area, and in respect of this case, as set out above. In view of the real ongoing harm that the use of the site causes to the immediate rural landscape and the village of Cottenham, and the need to deal with this harm as soon as possible, there is a pressing need to resolve the matter.”
Various implications of the options were then summarised. Under the heading of “Risk Management” it was said:
“If we do not have regard to the Travellers’ needs, the Council’s attempts to enforce the decisions made by the ODPM may be prevented. If the Travellers’ are not re-housed they may be forced back onto the road and this may be harmful to their health and education needs.”
Under the heading “Equal Opportunities”, it stated:
“In line with statutory duties under the Race Relations Acts and Disability Discrimination Acts, this Council’s (sic) operates both a Race Equality Scheme and a Disability Equality Scheme (the latter considered by the Council on 23 November 2006). Travellers represent the biggest ethnic minority in the district (1% of the population) and suffer disproportionately high levels of ill-health and disability. a) The Council is committed to treating everyone fairly and justly, whatever their race or background. b) The Scheme gives priority to actions relating to Travellers as the biggest ethnic minority in the district (around 1.0% of the district’s population). c) Planning is identified as being amongst the services most relevant to promoting race equality.”
The consultation responses, both externally and internally, i.e. within the respondent’s various departments, were summarised. One of the internal responses suggested considering applying for Central Government funding for new or refurbished Traveller sites now, “rather than waiting until the GTDPD process is much further advanced”.[17]The conclusion of the officer’s report was as follows:
“The on-going harm to the rural landscape and the village of Cottenham needs to be resolved as soon as possible. The suggestions from officers and the Parish Council are helpful, and your officers will pursue these matters to see if they can help resolve the problem. In particular it may help resolve the concerns about the health of one of the residents. However, provisions need to be made in case these do not help to resolve the situation. The Council needs to instigate the necessary legal actions in parallel to these discussions. This is especially important in this case where the harm has already been happening for some time, is significant and on going.”
[18]The recommendations were to take action to seek an injunction under section 187B, but at the same time “3) Refresh our search of Council-owned property (possibly revising the parameters of the earlier search to see if that helps to identify anywhere new); 4) Formally write to the County Council to ask them for their help (inviting them to share with us their search of the CCC-owned land too) 5) Contact Sheila Clarke at Go-East to invite her suggestions on anything else that we have not yet considered.” The sub-committee so resolved, subject to further consideration being given to the Human Rights Act implications, the assessment of need and the personal circumstances of those affected.[19]Thus the matter came back to the sub-committee on 18 June 2007. It seems that officers of the respondent had had difficulty in investigating the personal circumstances of the appellants, because an inspection of the site had led them to believe that the mobile homes were currently unoccupied. It was reported that counsel had advised that an application be made for an interim injunction and a permanent injunction, and that that was under way.[20]Following the issuing of the claim form on 17 July 2007, there was a further meeting of the sub-committee on 3 August 2007. It was reported by officers that two families had moved onto two of the plots since the previous report, including four people who are now amongst the six appellants, and needs audits of three were attached. Members were asked to revisit their previous decision, having regard to the personal circumstances of the occupiers, any hardship which removal would cause and any interference with their Article 8 rights. In addition, members were asked to consider in respect of these families “(b) whether the occupiers have any prospect of getting temporary planning permission; (c) the race equality duty imposed by the Race Equality Act 1976 and in light of the update from officers following the court hearing on 31st July.”[21]Again, members were presented with certain options, which included, as alternatives to pursuing the injunction claim, taking no action because of personal circumstances or inviting an application for temporary planning permission. The implications under Risk Management and Equal Opportunities summarised in the January report were repeated, including the reference to the respondent’s Race Equality Scheme.[22]When the matter came before the Deputy Judge, he recorded that it was not suggested by the respondent that there was an alternative site to which the appellants could “now” go if evicted by injunction. He proceeded on the basis that the respondent had no available pitches to offer and that there was (it seems more generally) a grave shortage of such sites, and so he assumed that an injunction would probably cause the appellants to be accommodated for an uncertain period of time either in unauthorised encampments or in bricks and mortar provided by the local authority under its duty as a housing authority towards homeless persons. In that connection, the judge found that the appellants would be categorised as a priority need because they had school age children. He also noted that there was no evidence of any organised search by the appellants for alternative accommodation, despite knowing for four years that their occupation of their present sites was precarious and knowing for some months that it constituted a criminal offence.[23]On the matters raised in resistance to the application for an injunction, the judge held, citing South Bucks District Council v. Porter [2003] UKHL 26; [2003] 2 AC 558 and R. v. Basildon District Council, ex parte Clarke [1996] J.P.L. 866, that even if the respondent had erred by not taking all material considerations into account when deciding to seek an injunction, that would not automatically invalidate its section 187B application. It was a matter which normally went to the exercise of the court’s discretion. In any event, he noted that he found that nothing had gone “seriously wrong” with the respondent’s procedures, a reference to a passage from the Basildon case to which I shall have to return.[24]He then went through the various criticisms advanced of those procedures. While there was no specific consideration in the reports of the section 24 power to provide sites, he did not regard the respondent as being under a duty to give that power specific consideration when dealing with a proposed application under section 187B. He referred to the reports to sub-committee and to the respondent’s Race Equality Scheme and held that the members had been reminded of the relevant policies, saying that they were aware that the ethnicity of the appellants was at the heart of their application. In that context he referred to the way in which the planning appeals had taken account of the appellants’ ethnic status, and he held that it was reasonable for the respondent to take that into account when deciding whether or not to seek an injunction (paragraph 54(v)). He stated that he found it difficult to envisage any relevant consideration of this kind which ought to have been considered by the respondent in respect of section 187B relief which was not equally relevant to the planning process.[25]So far as the Code of Practice was concerned, the judge noted that that required such bodies as local authorities to assess the impact on racial groups of carrying out a policy or function. However, he did not regard that requirement as being apt to making a particular enforcement decision in respect of plots occupied by particular peoples, as contrasted to the development of relevant policies. Therefore the respondent was not obliged to carry out a separate race impact assessment when deciding to seek an injunction. He went on then to say that, in a passage relied on by Mr Allen in this appeal, at paragraph 55(vi):
“I do bear in mind as a factor to be weighed in the discretionary balance that no specific consideration to race issues was given by the local planning authority when deciding to take these proceedings, as I have recorded in paragraph 54(vi) above. They reminded themselves of the relevant policies, as set out above, but did not consider in terms how those policies applied to the decision in hand. I also bear in mind the fact that it has not been suggested in these proceedings that they overlooked any material which would have been relevant to the decision in any way which was helpful to the defendants. The submission is that such an assessment was a form of procedural requirement, but not that the local planning authority has overlooked any particular factor by reason of the suggested failure.”
[26]The appellant’s case is, first and foremost, that the respondent failed to take properly into account its duties under section 71 of the RRA and the need to do a race impact assessment as required by the Code of Practice. Had it done so, it would have given consideration to how other sites could have been brought forward outside the development plan process, so as to minimise the harmful impact on the appellants. Steps should have been taken outside the development plan process to identify such sites. Waiting for the G.T.D.P.D, expected in 2009 is not sufficient. It is submitted that such steps would have accorded with the guidance in Circular 1/2006, which seeks a significant increase in Gypsy and Traveller sites in appropriate locations.[27]Mr Allen argues that the judge was wrong to conclude that section 71 of the RRA and the provisions of the Code of Practice did not apply to decisions about enforcement action of this kind. The respondent was performing a function in so deciding, and the Code at paragraph 3.16 expressly refers to the need to assess the effects of “the way a function is being carried out.” Likewise, section 71(1) imposes the duty there set out on every specific body “in carrying out its functions”. That, says Mr Allen, has been recognised by this court in R (Baker) v. Secretary of State for Communities and Local Government [2008] EWCA Civ 141, where it was held that a planning inspector deciding whether or not to grant planning permission was under a duty to have due regard to the need to promote equality of opportunity between persons of different racial groups and to achieve the other section 71(1) goals. That is an analogous process of decision-making.[28]Mr Allen accepts that, in accordance with Baker, it is unnecessary that the body in question should expressly refer to section 71: it is, as Dyson LJ there said at paragraph 37, a question of whether the decision-maker has in substance had due regard to the relevant statutory considerations. Here, it is submitted, the respondent did not. Mr Allen does not contend that the respondent, or for that matter the judge, overlooked any harmful effects of an injunction on the appellants; the impact on them, he accepts, would not have been found to be different had a race impact assessment been carried out. That conclusion was subject to one exception, namely that the inappropriate nature of “bricks and mortar” accommodation and its effect on the appellants’ way of life would have been identified. In any event, section 71 is intended to form a fundamental part of official decision-making. Reliance is also placed on the absence of any reference in the reports to the respondent’s powers under section 24 of the 1960 Act.[29]As I have indicated earlier, it is argued that these failings meant that the court had no discretion to grant an injunction: it had no valid application for an injunction before it. Alternatively, the discretion should have been exercised differently because of those failings.

Discussion:

[30]There is an initial problem about the first of those submissions, which amounts to an argument that the court had no jurisdiction to grant an injunction because of the respondent’s alleged failings. Assuming for the moment that the respondent had failed to take section 71 of the RRA and section 24 of the 1960 Act into account when deciding to apply for an injunction, the argument implies that the court hearing the application cannot cure those defects by itself taking those matters fully into account when deciding how to exercise its discretion.[31]Yet, as the authorities already referred to emphasise, both the local planning authority and the court are given a very broad discretion under section 187B. The authority may apply for an injunction where it considers it “necessary or expedient” for a breach of planning control to be restrained by injunction. In the Basildon case (ante), Carnwath J observed at page 869 that:
“If something had gone seriously wrong with the procedure, whether in the initiation of the injunction proceedings or in any other way, it was difficult to see why the County Court judge could not properly take it into in the exercise of his discretion to grant or refuse the injunction.”
That passage was cited with approval by Lord Bingham of Cornhill in South Bucks District Council v. Porter, where at paragraph 27 it was said:
“The jurisdiction of the court under section 187B is an original, not a supervisory, jurisdiction. The supervisory jurisdiction of the court is invoked when a party ask it to review an exercise of public power. A local planning authority seeking an injunction to restrain an actual or apprehended breach of planning control does nothing of the kind. Like other applicants for injunctive relief it asks the court to exercise its power to grant such relief. It is of course open to the defendant, in resisting the grant of an injunction, to seek to impugn the local authority’s decision to apply for an injunction on any of the conventional grounds which may be relied on to found an application for judicial review.”
[32]Lord Steyn in the same case at paragraph 51 endorsed the description of the words “necessary or expedient” in section 187B(1) as “a deliberately loose entry barrier”, and Lord Bingham returned to the topic at paragraph 31 of his opinion, saying:
“When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests.”
No authority has been cited to us which supports the approach being advocated on behalf of the appellants.[33]I can see that, if an application to the court was made by an officer of a council wholly without authorisation, that may be a different matter. But merely because it is said that the local authority left a material consideration out of account would not deprive the court of jurisdiction, any more than a refusal by a local planning authority of planning permission is rendered invalid because of such an omission. Such a refusal may be considered on its merits by the Secretary of State, who may take into account any matter overlooked by the authority, as may the court dealing with the application for an injunction. In any event, this first way of putting the appellants’ case depends upon it being shown that the respondent was guilty of the alleged failings and, as will become clear later in this judgment, I am not persuaded that that factual contention has been made out.[34]I do not regard section 24 of the 1960 Act, with its power to provide sites and if necessary to acquire land for that purpose, as adding materially to the appellants’ case. There are two reasons for that. First, Mr Allen conceded in argument that he was not suggesting that the respondent was unaware that it had that power. Secondly, the power is only concerned with the availability of land and the physical provision of sites: it has nothing to do with the identification of sites which are suitable in planning terms for such a use. Even a caravan site to be provided by a local authority requires planning permission and, unless it has been identified as suitable for such a use in the adopted development plan, the application for planning permission would inevitably go to a public inquiry. So the existence of section 24 powers really does nothing to grapple with the real problem which has lead to the national shortage of sites for Gypsies and Travellers, recognised in the Secretary of State’s Circular 1/2006, which is the identification of sites suitable in planning terms.[35]The heart of Mr Allen’s case lies in section 71 of the RRA and in the Code. I accept the submission that these provisions apply when a local planning authority is considering whether or not to seek an injunction to restrain a breach of planning control. It is performing a function, and in my view the judge below erred in finding otherwise. But this court is in as good a position as he was to deal with the merits of this case and I see no reason why we should not apply our minds to the questions which then arise. Did the respondent fail to have regard to its statutory duties? If so, what effect should that have on the exercise of the court’s discretion?[36]I have set out the relevant parts of the reports to committee earlier. As is acknowledged, one is concerned with the substance of the matter, not with the form, not with whether express reference was made to section 71 and the Code: see Baker, paragraphs 36 and 37. There can be no doubt that the sub-committee was well aware that it was dealing with gypsies and that they constituted an ethnic group, and that an injunction would have harmful consequences for the appellants. The very first report, dated 31 January 2007, refers to them as an ethnic minority and to the fact that they suffer disproportionately in terms of ill-health and disability. It refers to the difficulties which the appellants would experience in accessing education and medical services if forced back on to the road. The report not only summarises the Secretary of State’s appeal decision but gives a web-site address where it can be found; as I have pointed out earlier (paragraph 3), the Secretary of State had both recognised the gypsy status of the appellants and given their health and education needs greater weight in consequence thereof. The report to the sub-committee makes express reference to the Race Relations legislation, to the respondent’s own Race Equality Scheme and to the need to promote race equality in planning decisions. The Deputy Judge found that this last group of references was not merely paying lip service to the statutory duty placed on the respondent and I can see no reason to depart from that finding.[37]The only practical effect of an injunction which the appellants suggest would have been identified by a more formalised race impact assessment but which was not reflected in the officers’ reports is the recognition of the appellants’ aversion to being accommodated in “bricks and mortar”. That certainly was not expressly mentioned in the 31 January 2007 report, though that does not necessarily mean that the members were unaware of it. But in any event, when they re-visited the issue of injunction proceedings on 3 August 2007, it was a factor specifically referred to in the needs audits put before the sub-committee. Those audits are in a standardised questionnaire format, and one of the questions asked in each case was “Do you have a cultural aversion to bricks and mortar?” The question by itself would have been enough to draw this factor to the attention of members, but the material went further than that, because the responses given were in identical terms:
“Yes, do not want to move into a house or hostel.”
I cannot see that in reality the sub-committee could have been unaware of this consideration. So the end result is that no aspect was overlooked which a more formalised race impact assessment would have brought to light. In substance, the sub-committee had due regard to the relevant statutory considerations.[38]The steps which it is argued that the respondent should have taken involve identifying some alternative site for the appellants. Yet the recommendations accepted by the sub-committee on 31 January 2007, set out at paragraph 17 of this judgment, show that the respondent was prepared to take steps to see if any alternative sites might be available and to do so in parallel with the injunction proceedings. What it was not prepared to do was to reject or postpone such proceedings until the GTDPD had produced results by way of identified suitable sites. The sub-committee had two options put before it which would have avoided injunction proceedings pending those results, options 1 and 2 set out in paragraph 13 (ante), and it rejected those options for reasons which are clear and rational, namely the urgent need to halt the “real ongoing harm” to the village of Cottenham and the rural landscape.[39]One of those options involved the possibility of temporary planning permission in the hope that a suitable site might be found through the work on the GTDPD. In other words, the sub-committee was giving consideration to the possibility of finding an alternative site. But, like the Secretary of State, it saw the delay in clearing the appellant’s site which would be involved as too great when set against the urgency of the need to remove the existing harmful development. The evidence was that the GTDPD would not identify any suitable sites before 2009.[40]Mr Allen’s suggestion that the sub-committee should have considered bringing forward sites outside the scope of the development plan process was not a course of action which was realistically open to the respondent. Contrary to his submission, it would not have been in accordance with the Secretary of State’s policy as set out in Circular 1/2006. Despite that circular’s recognition of the need for more sites for Gypsies and Travellers, it contains repeated references to meeting the need by means of the development plan process. Thus paragraph 8 states “The Development Plan Documents (DPDs) will identify the location of appropriate sites”, And the same point is made at paragraphs 19 (“Overview”), 21 and 33, the last of which emphasises the need for local planning authorities to be able to demonstrate that sites are suitable. Even when dealing with Transitional Arrangements the Circular still adheres to the development plan process, making the point in paragraph 43 that, where there is clear and immediate need, local planning authorities should bring forward DPDs in advance of regional assessments. Nowhere is there any encouragement to authorities to take action outside the development plan process, and that is entirely understandable, first because we have a development plan-led system, and secondly because to try to bring forward a site by by-passing the system would be likely to exacerbate the controversy which generally attends proposals for sites for Gypsies and Travellers. It would not be a recipe for speedy provision.[41]Therefore I conclude, that the respondent did not fail in its statutory duties under section 71 of the RRA and the Code of Practice, nor did it leave out of account any relevant consideration. That is not the end of the matter, because the discretion to grant or refuse an injunction is the court’s, not the local planning authority’s, but it means that the appellant’s argument that the application for an injunction was invalid must also fail on the facts. In addition, the legitimacy of the respondent’s decision is relevant to the court’s exercise of discretion. As Simon Brown LJ said in the Court of Appeal in South Bucks District Council v. Porter [2001] EWCA Civ 1549, [2002] 1 WLR 1359:
“Relevant too will be the local authority’s decision under section 187B(I) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.”
That was one of the passages endorsed by the House of Lords: see per Lord Bingham of Cornhill at paragraph 38.[42]In the present case, I would attach considerable weight to the respondent’s decision because it did take into account all material considerations and because it approached the issue in a balanced and proportionate way. Moreover, it had as part of its context a decision by the Secretary of State on the planning appeal, which decision itself took into account the ethnic status of the occupiers and their personal needs. That does not relieve the court of its own duty to consider those matters, but it is nonetheless a relevant factor. In the present case the Deputy Judge gave detailed consideration to the personal circumstances of the appellants and his assessment thereof has not been criticised. The only error into which he fell was to regard the need to carry out a race impact assessment as not applying to the respondent’s decision to apply under section 187B, but as I have said earlier the approach adopted by the respondent did in substance amount to such an assessment, even if not produced in such a form. That error does not, in my judgment, vitiate the conclusion to which the judge came. His own exercise of discretion fully took account of the ethnic considerations relevant in this case, as it did of the impact of an injunction on the appellants. In any event, were this court called upon to exercise its own discretion in place of that of the judge, I would exercise it in favour of the grant of the injunction for the reasons given earlier.[43]It follows that I would dismiss this appeal.[44]I agree.[45]I also agree.

Cited in 6 later judgments