O'Brien & Anor, R (on the application of) v Basildon District Council [2006] EWHC 1346 (Admin)

Case No CO/4200/4182/2005[2006] EWHC 1346 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 12 April 2006
Strand
London WC2
B E F O R E:
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OFClaimantJOSEPHINE O’BRIEN and CHRISTINA O’BRIENClaimantJOSEPHINE CASEYClaimantJOHN and KATHLEEN BERRYClaimantPATRICK and MARGARET DORANClaimantDEBORAH KILLEANEYClaimant-v-
Between
BASILDON DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR R. DRABBLE QC and MR M. WILLERS (instructed by the Community Law Partnership) appeared for CLAIMANTSMR D. ELVIN QC and MR R. TAYLOR (instructed by Basildon District Council) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE OUSELEY: The claimants in these two sets of proceedings are two groups of gypsies whose caravans occupy adjoining plots of land in the Green Belt and plot lands of Essex between Basildon and Wickford. They own the plots although they are not the registered owners.[2]The plots are each subject to enforcement notices under the Town and Country Planning Act 1990. These came into force and effect before the claimants came on to or bought the plots. The claimants' occupation is in breach of section 179 of the 1990 Act and is a criminal offence.[3]In June 2005 Basildon District Council resolved to take steps under section 178 to remove the claimants' caravans from the plots so as to enforce compliance with the enforcement notices. The claimants challenge that decision on two grounds. They for the most part are related to interference with rights under Article 8 ECHR.[4]The first ground is that the District Council is acting disproportionately in relation to what was said in practice to amount to a residential eviction, in choosing to secure compliance with the enforcement notices by the direct action route of section 178 as opposed to seeking an injunction under section 187B.[5]The second ground is that the decision to secure compliance with the enforcement notices is itself disproportionate and unlawful in ordinary public law terms. Interim orders have prevented the District Council giving effect to its decision until the conclusion of these proceedings. The District Council confirmed its decision in a resolution of 24 January 2006.[6]The five approximately equally-sized plots in question amount in total to about 0.5 of a hectare. They are part of a larger area in which there have been other enforcement notices which have taken effect in respect of similar uses. Some have been complied with and some are subject to further enforcement action by the District Council, which is not yet fully effective and which was also the subject matter of its resolution of 9 June 2005. The challenge before me only arises in respect of the decision so far as it affects the claimants' plots.[7]The O'Briens’ plot, numbered 1, is known as “Dunroamin”. On 8 October 1998 an enforcement notice was issued against the use of a wider area of land including that plot for stationing a caravan for residential purposes. There was no appeal against the notice and it took effect on 9 November 1998. The period for compliance expired on 9 December 1998.[8]Thereafter, continued use for the stationing of a caravan and failure to take the other steps required by the enforcement notice constituted a criminal offence under section 179 of the 1990 Act. The steps required to be taken were that the use of the land as a caravan site had to stop, and the caravans, ancillary vehicles, and rubbish had to be removed from the site. The enforcement notice is effective against subsequent development even after initial compliance; (section 181 TCPA 1990).[9]The O'Brien group comprises Josephine O'Brien and her twins aged eight, and her sister-in-law with her six children aged between four and 17. They occupy two caravans and a mobile home together with a portable cabin used as wash room and toilet. All but the oldest and the youngest are at a local primary and secondary school. Indeed, the youngest has probably started by now. One has a cleft palate requiring complex surgery in London and care from the same medical practitioners afterwards.[10]Both O'Briens are single mothers and traditional Irish Travellers. Josephine had lived in the UK for 17 years and moved on to the plot in about March 2004. She was joined by her sister-in-law in August 2004. Each had had some experience of living in bricks and mortar accommodation in London, Josephine for a year or two, Christina for many years, but they did not like it, and there were subjected to racial abuse. Josephine had resorted to the Basildon area for a couple of years before 2004, attending fairs and staying with close relations on a plot a few hundred yards away. Christina's local links were unstated.[11]Josephine O'Brien made an application for planning permission to station the caravans and mobile home on the land on 29 September 2004, and supported her application with details of the group's personal circumstances. If granted, planning permission would have removed the effect of the enforcement notice in respect of that plot. It was refused on 6 June 2005 for two reasons. The land was in the Green Belt and no very special circumstances had been shown to justify this inappropriate development within it. It did not meet the criteria for residential Gypsy caravan sites in the Basildon District Local Plan, and there was nothing to override the strong presumption against such a development in the very sensitive area of Green Belt open land between Basildon and Wickford.[12]An appeal was lodged against that refusal on 17 June 2005 and is due to be heard at a public inquiry on 23 May 2006. Meanwhile on 9 June 2005 Basildon District Council through its Development Control and Traffic Management Committee resolved to take enforcement action against the O'Briens and a number of other occupiers of other land at Hovefields, and to do so by means of action under section 178 TCPA 1990. They had the benefit of a report from Officers.[13]The report and meeting will have to be considered in some detail. They delegated to the Solicitor to the Council authority to take such action as was necessary to give effect to the decision to use the powers in section 178 to secure compliance with the enforcement notices.[14]On 13 June 2005 the Council sent letters to the O'Briens and to the other occupiers of the plots in question requiring that they comply with the requirements of the enforcement notices by midnight on 26 June 2005; otherwise the powers under section 178 would be used to enter upon the land and to remove the caravans and other items which the enforcement notices required to be removed.[15]At the same time as the appeal was lodged a pre-action protocol letter was sent to the Council. A claim for judicial review was lodged on 24 June 2005 and interim relief was granted, without notice, staying the removal. Permission was granted by the Court of Appeal, and the interim relief which had been discharged when permission was refused at first instance was reinstated.[16]The second action concerned four plots lettered B, C, D, E, immediately south east of Plot 1. Plot A made up the rest of the lettered strip. Plots A to E adjoin Plots 1 to 5 immediately to their east. Plot 6 was detached from Plots 1 to 5, but was still within the larger overall area covered by the 1998 enforcement notice.[17]Plots A to E were the subject of two enforcement notices issued on 3 January 2002 and three more issued on 12 April 2002, which required the cessation of the use of the total area for siting caravans for residential purposes, removal of the caravans and hard standing, and re-seeding.[18]Appeals were lodged against these enforcement notices, and, following a public inquiry, the appeals were dismissed in a decision letter dated 31 July 2002. One notice was quashed on immaterial grounds.[19]The then occupying appellants were a Gypsy family comprising husband and wife and four children, three of whom were at school. Their personal circumstances were insufficient to overcome the serious planning objections to this inappropriate development in this part of the Green Belt. Time for compliance was extended for three months, so the requirements should have been complied with by 31 October 2002, or possibly six weeks later.[20]Josephine Casey moved onto Plot E, “Highview”, at the beginning of 2004 with a caravan, mobile home, portacabin and a few animals. She lives with four children aged between six and 15, who are at school or waiting for a place locally. A husband, from whom she is separated, and another older daughter sometimes stay. She is a traditional Irish Traveller and came to Basildon after the authorised site in North London on which she had been a tenant for 15 years closed. She has some medical needs, looked after locally.[21]At some point in 2004 a planning application for the use of the land for siting a residential caravan was made but was treated as withdrawn because the fee was not paid. There was a problem with the work of their then solicitor. A further application, made in 2005 for the same development, was refused on 27 April 2005 by Basildon District Council and an appeal was lodged in August, which is due to be heard at the inquiry on 23 May 2006.[22]The enforcement action proposed by Basildon District Council was dealt with in the same report and at the same meeting as that in respect of the O'Briens, with the same outcome. The same interim relief was granted without notice, and permission was granted at first instance.[23]John and Kathleen Berry are brother and sister. Likewise they are traditional Travellers, who moved onto their plot, D, “Homeview”, towards the end of 2003. Kathleen Berry's five children, aged between three and nine, live with them. They have also bought their plot. Three children are at school and a fourth will go soon, if he is not already there. Two children have eye problems, which require medical treatment at a local hospital. There are various other medical problems and social needs in the family.[24]Kathleen Berry also made an application for planning permission for the retention of a residential gypsy caravan on the site in 2004, which, as with Josephine Casey's, was treated as withdrawn because fees were not paid. A further application was refused on 27 July 2005, and an appeal lodged two weeks later is due to be heard on 23 May 2006. The Basildon District Council enforcement decision followed the same process as with the others. Interim relief and permission were dealt with in the Casey decision.[25]Patrick and Margaret Doran moved onto Plot C, “Long View”, in early 2003. They, too, are traditional Travellers. This is the first plot which they have bought. Their two children, 11 and nearly seven, attend local schools. Mr Doran is schizophrenic and attends a local hospital regularly. Mrs Doran makes a very modest living as a cleaner, and her wages are the sole family income.[26]An application for planning permission for use of the site as a residential caravan site was made in 2003 and refused in January 2004, although it appears that the notice of decision was not sent out until 6 June 2005. An appeal lodged on 20 June 2005 is also due to be heard on 23 May 2006. Had the notice of decision been issued very much earlier, as should be the almost invariable position, an appeal could have been lodged and heard already.[27]The enforcement action followed the same course as with the others. Interim relief and permission were dealt with as part of the decision in Casey.[28]Plot B, “Ashview”, is occupied but not owned by Deborah Killeaney, a traditional Traveller, who arrived on the site in late 2003 or early 2004. She is a widow of 33 and has four children aged between six and 12, who all go to school. The oldest child has severe cerebral palsy and epilepsy, for which he is treated at a local hospital. She still travels.[29]A planning application was submitted on 4 July 2005 and refused on 18 August 2005. No appeal has been submitted and the time for doing so has passed. The enforcement and court proceedings are the same as for the others in the second group of claimants.[30]There has been compliance with the enforcement notices in respect of Plots A and 6, but their occupiers have moved to a site not very far off, which is the subject of the same decision and partly similar proceedings to these. An injunction had been applied for to enforce compliance with the enforcement notice in respect of Plot 6, but it had not been necessary to obtain it. There have been prosecutions in respect of the then occupiers of Plots A, C, D and E in October 2003, leading to fines of between £120 and £800 together with costs. The only claimants currently in occupation who were then prosecuted were the Dorans, or one of them. They were fined £800 with £2,165 in costs, all of which has been paid. The legislation.[31]Since so many of the submissions depend on the proportionality of the enforcement of planning control, it is necessary to set out a little of the legislative background. Where there has been a breach of planning control through the making of a material change of use without the necessary planning permission, a local planning authority can serve an enforcement notice, if it thinks it expedient to do so. That notice requires steps to be taken within a specified time of the enforcement notice taking effect. Those steps are designed to remedy the breach or alleviate the harm. An appeal can be lodged against the enforcement notice, which has the effect of suspending its effect until after the final determination of the appeal.[32]Appeals can be brought on grounds which relate to the planning merits of the unauthorised development, to the existence of a breach, to the extent of the steps required to be taken, and to the time within which they are to be taken. Once an enforcement notice has become effective, it cannot be challenged except within the time and manner allowed by the Act and the CPR. Compliance does not discharge the enforcement notice; section 181. It remains effective against subsequent development; it is not necessary for the whole process of enforcement to be restarted.[33]Section 179 provides that criminal offences are committed where the owner or other person having control of the land continues the prohibited activity or uses, or fails to take the steps required by the enforcement notice. There was no issue here but that the claimants' occupation of their land, the use or presence of their caravans, mobile homes and other structures involves criminal offences daily against that provision. The maximum fine on summary conviction is £20,000. It is unlimited on conviction on indictment. The section makes the financial gain from the breach a relevant factor in the level of fine. There is no provision for imprisonment.[34]Section 180(1) provides that the grant of planning permission for the development struck at by the enforcement notice causes the enforcement notice to cease to be effective, but, by subsection (3), that grant of permission does not affect any criminal liability incurred up to the date of the grant of planning permission.[35]The statutory provisions which have been most in issue in this case are sections 178 and 187B. Section 178 provides for what has been called the “direct action route” for enforcement. The relevant parts are:
"178(1) Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may – (a) enter the land and take the steps; and (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."
[36]Regulations can be made which apply to this section the power to sell "materials removed in executing works" in the Public Health Act 1936. There is scope for debate (which I do not propose to resolve) as to whether a caravan can fall within the scope of those words. Section 178(6) also makes it an offence wilfully to obstruct a person in the exercise of the powers under subsection (1). There are no procedural requirements laid down for the exercise of that power.[37]I note in passing that under section 181(4), where buildings or works have been removed in compliance with an enforcement notice and are subsequently reinstated (which is not the case here), at least 28 days' notice has to be given to the landowner of the proposed exercise of section 178 powers.[38]This procedure was little used in its earlier statutory incarnation, but, following the Carnwath Report and changes which included the extension of the power to cover the cessation of a use in breach of an effective enforcement notice, it appears to have become more commonly used. The report described the new power as "little more than a last resort power" and noted that judicial review would be available to prevent abuse.[39]Circular 10/97 "Enforcing Planning Control", in paragraph 2.87, said that it was seen as "a swifter and more cost effective means of remedying planning control" than prosecutions, which could prove time consuming. There was the occasional need for a police presence and protective clothing. The paragraph added that it might be advisable not to "publicise in advance any proposal to exercise" the power.[40]Direct action powers are also available to the police in sections 61 and 62 of the Criminal Justice and Public Order Act 1994. This is directed to the unlawful occupation of land belonging to others. Before any direct action to remove caravans is taken under that power, there has to be a direction to individuals to remove the caravans.[41]The other important provision is section 187B: “187B(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."[42]It is to be noted that this procedure is available in respect of both anticipated breaches of planning control and actual breaches of planning control. Those actual breaches may or may not have resulted in enforcement notice proceedings, and the enforcement notices may or may not have taken effect, and non-compliance may or may not have become a criminal offence. So it is available in a much wider range of circumstances than is section 178 which only applies where an enforcement notice has taken effect, and the time for compliance has passed.[43]The nature of the court's role in considering such an injunction has been dealt with in a number of cases, notably South Buckinghamshire District Council v. Porter [2003] UKHL 26, [2003] 2 AC 558. That decision related to three cases involving gypsies. In Porter itself, an enforcement notice had taken effect for some time. There had been a prosecution, but at the time the injunction was granted at first instance there was no outstanding planning application or appeal, and the appellant was given one year in which to comply with the injunction.[44]Lord Bingham describes the development of the injunction as a remedy in respect of a breach of planning control. In a very short summary, the Carnwath report and policy documents saw it as a useful back-up to provide an urgent or more effective remedy than prosecution or stop notices. The crucial aspect of that case was its emphasis that the decision whether to grant an injunction, and the terms of the injunction, were matters for the court exercising an original jurisdiction created by section 187B, and not a supervisory jurisdiction over local planning authorities.[45]Although Lord Bingham said that the power was there above all to prevent abuse and to provide urgent solutions where other, lesser measures had failed or would clearly fail, in which the history of enforcement proceedings would be relevant, the court's task in all cases was to decide whether in all the circumstances it was just to grant the relief sought against the particular defendants. It was not for the court to exercise planning functions allocated to the local planning authority such as whether or not a planning permission should be granted, but the court would consider matters such as how visible a particular development was from a particular place, and could consider the prospects of success for a pending application or appeal. The conclusion of the local planning authority could not be decisive of itself.[46]At paragraph 31 Lord Bingham said:
"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 none the less 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. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances..."
[47]Of particular importance was the fact that the grant of an injunction could lead to enforcement ultimately by imprisonment; the court should not grant an injunction if it was not prepared to order its enforcement in that way, should that prove necessary (paragraph 32).[48]What Simon Brown LJ said in the Court of Appeal was approved by Lord Bingham in paragraph 38 and is set out in paragraph 20 of his speech. Paragraph 41 of what Simon Brown LJ had to say is relevant to this case. "...once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the Gypsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the Gypsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular; the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate."[49]Lord Bingham then turned to Article 8, which had been considered recently in relation to similar issues in the European Court of Human Rights. He said at paragraph 37:
"It follows, in my opinion, that when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is in any event required by domestic law to carry out."
Lord Steyn added, in paragraph 58:
"What in the context of the present case is required was explained by Simon Brown LJ in terms on which I cannot improve. He said, at page 1378: 'Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the Gypsy's private life and home and the retention of his ethnic identity - are at stake.' Plainly, the protection of the relevant Convention right would not be effectively protected by leaving it to local authorities acting under section 187B(1) to consider matters of hardship under Article 8."

The decision of Basildon County Council

[50]I turn from the legislative provisions at issue to the decision making process of the District Council. Mr Drabble, QC, for the claimants, did not suggest that Basildon District Council was not entitled to enforce planning control or the criminal law. His claim was that the District Council had erred in law in choosing the section 178 route over the section 187B route. His submissions depended in part on personal circumstances (which I have summarised above) and the Council's decisions on those two routes, to which I now turn.[51]The report to the Committee of 9 June 2005 dealt with many plots in addition to those the subject matter of these proceedings. It said that its purpose was to inform and update Members about serious breaches of planning control in the Green Belt around Hovefields Drive. All the sites were the subject of valid enforcement notices, and:
"The Council now needs to take a decision(s) on the most effective course of action to secure compliance with the Notices."
It said in its introduction:
"In considering whether to take action on the enforcement notices against the unauthorised development the Council must balance the public interest in securing the removal of development that has occurred in breach of planning control against the personal circumstances of the occupants of the sites (including their human rights) and the hardship which is likely to be caused. This report sets out the approaches available to the Council in dealing with the unauthorised developments on the land shown on the site plan below."
[52]The report sets out relevant Government policy on gypsy sites. Circular 1/94 said:
"The aim should always be to secure provision appropriate to Gypsies' accommodation needs while protecting amenity."
[53]This Circular was under review and a new Draft Circular had been published for consultation in December 2004, paragraph 54 of which said:
"The provisions of the European Convention on Human Rights should be considered as an integral part of local authorities' decision-making - including its approach to the question of what are material considerations. Local planning authorities should consider the consequences of refusing or granting planning permission, or taking enforcement action, on the rights of the individuals concerned, both Gypsies and Travellers and local residents, and whether it is necessary and proportionate in the circumstances."
[54]The 2003 DETR/Home Office Guidance to Managing Unauthorised Camping said that a balanced approach was required. Unauthorised sites should be tolerated where practicable, and enforcement action, if it were necessary, should be carried out with full consideration of the circumstances and needs of the gypsies concerned. However, gypsy sites should be provided through the planning process and it was not appropriate to make provision for them in open areas of land where development was severely restricted. (There is a sentence which says that eviction should not take place without a court order, but that is clearly not said in a planning context. Those planning powers, including section 178, are dealt with in a later section. That earlier comment is concerned with public order and trespass.)[55]PPG 18, guidance of general application, reminded the Council that enforcement action was discretionary, a last resort, and should only be taken where there was a clear breach of planning control and it was expedient to take that action. The rights and needs of gypsies were again referred to in the context of the CJPOA 1994, and the Council was reminded that it had a variety of other obligations to those who might be evicted under that Act.[56]Development plan policy was contained in the Structure Plan and the Basildon District Local Plan. The Structure Plan required District Councils to identify in their Local Plans the extent of the need for gypsy sites in their areas and to make site-specific proposals.[57]The BDLP and Structure Plan Policy confirmed that gypsy sites were inappropriate development in the Green Belt. There were four specific policies, of which two are of particular relevance, which I can take from the report. "BAS S6 sets out criteria against which proposals for residential use are to be assessed. The criteria include: the need to make adequate provision for Gypsies, the need to protect the Green Belt, Gypsy status (to be demonstrated with documentary evidence, and to include indications of local connections with Basildon), and how the site location relates to locational criteria in BAS S7. Criterion (i) of BAS S7 requires applications for residential Gypsy sites to be consistent with Green Belt policies; to be within reasonable distance of a settlement for access to schools, shops and similar facilities; to have minimum impact on the Green Belt and the countryside without the need for extensive earth bunding or tree planting; to have convenient and safe access to the main highway network; and to have minimum impact on existing residential properties."[58]The planning considerations for the various plots were then analysed, starting with a brief planning history. Mr Elvin QC, for the District Council, points out correctly that the analysis did not simply start from the basis that enforcement notices had taken effect, that the criminal law was being broken on the claimants' occupation of the land, and then proceed to cause the most effective method of enforcing the law. There is consideration of the planning merits of the use of the land for stationing residential caravans by these gypsies before the question of what to do about their illegal presence is considered.[59]The first substantive issue dealt with was the degree of harm to the Green Belt. Having described how the issue should be approached, the report drew upon the decision of the Inspector in 2002 on Plots A to E. He considered that the area had an important Green Belt role, particularly because of its narrowness and vulnerability which Inspectors had recognised in many other decisions, protection of which in general would be undermined by the grant of planning permission on this site unless the circumstances were truly exceptional. The Officers' report concluded that there were no circumstances which had changed so as to warrant a re-examination of those views unless it lay in the different personal circumstances of the present occupiers. Those conclusions applied equally to the nearby Plots 1 to 6.[60]The Officers' report assumed, for good reason, that the occupants were all gypsies. When the need for more sites for gypsies was analysed, the Officers drew upon the decision of the Inspector in 2002. He had recognised the considerable efforts made by the District Council over the last decade or so, with a more than tenfold increase in the number of authorised private sites, and had said that the current substantial level of unauthorised sites was not an overriding consideration in favour of granting planning permission for inappropriate development in the Green Belt.[61]The report said that Basildon District Council provided more authorised gypsy caravan pitches than all but three other districts, boroughs or single tier authorities in England and Wales. It continued:
"Whilst in strict numerical terms there [are] clearly more Gypsies and Travellers in the District than there are pitches, the Council has consistently argued that demand and need are not one and the same and that other Districts should play their part in allocating land for pitches. To accept that demand must be satisfied at the point at which it arises is overly simplistic, will inevitably give rise to disproportionate site distribution and lead to overly large settlements that are unlikely to be sustainable. Accordingly, the Council has decided not to allocate any land for further Gypsy/Traveller sites in the Basildon District Replacement Local Plan."
[62]The report referred to the proposal in the draft consultation paper that the regional housing strategy would address the needs of gypsies in the region and propose a sub-regional split. It said:
"Although it may be the case that there is an unmet need for sites nationally and within the Eastern region as a whole, in the light of the current level of provision within the District and the approach adopted by the Local Plan to this issue, Officers do not consider that there is an unmet need for sites within the District."
[63]The draft Government Consultation Paper envisaged that there would be a local housing needs assessment which covered gypsies, and that until that was finished planning applications would be considered in the light of early data related to the level of needs, but the consultation paper was at an early stage and little weight should be attached to it. This part concluded with the frank assessment:
"However, whatever the position with regard to the District's position and emerging policy guidance, it must still be acknowledged that no alternative sites appear to exist locally should the occupiers be displaced from Hovefields Drive. Members should therefore proceed on the basis that if they decide to require compliance with the enforcement notices that this will lead to the occupiers being displaced to unauthorised sites elsewhere, possibly onto the roadside, and that hardship is bound to be caused by this."
[64]Human rights and personal circumstances were next considered. The report opened these issues by saying that the implications of taking enforcement action upon the rights of those concerned and whether such action was proportionate in the circumstances had to be considered. Article 8 and Article 1 of Protocol 1 were mentioned. The European Court of Human Rights had accepted that upholding planning law and policy was a legitimate aim.[65]Proportionality was much the same as the question of whether Green Belt or other considerations outweighed the personal circumstances of the occupiers. There would be no breach of their rights if the District Council concluded that the action to secure compliance was justified in the public interest, but the lapse of time since 2002 meant that it was necessary to consider the personal circumstances of the occupiers.[66]Limited information about the new occupiers had been garnered in the time available. Complaint was made at one time in these proceedings about the quality of information which the District Council had about the individual claimants, but that is not now pursued.[67]It was emphasised that this was a report to consider enforcement action. Removal was the likely consequence, and so removal would affect access to healthcare and education. It should be assumed that there were no alternative sites in the vicinity and that removal would mean that there was nowhere else to go but the roadside. The Officers' recommendation was:
"Officers consider that, on balance, the clear planning and environmental harm which is identified above and the public interests which that represents outweighs the undoubted adverse effect and hardship which enforcing planning control and removing the occupiers from the sites will have. This has the result that it is considered that it is expedient and in the public interest to take action to seek compliance with the enforcement notices against the unauthorised developments."
[68]There were no relevant changes of circumstance since the Inspector had dismissed the appeals in 2002.[69]The report turned to consider the enforcement options. There were five options, all of which had the potential to interfere with family life, the home, and the enjoyment of possessions. However:
"The action that the Council proposes to take must be proportionate to the breach but sufficient to secure compliance with the enforcement notice. However, if Members consider that they should uphold planning control and seek compliance with the enforcement notices, then it is also relevant to consider which method of seeking compliance is likely to be most effective."
[70]The first option was doing nothing and tolerating the sites. The second was criminal prosecution. This was time consuming, and the courts were reluctant to impose the scale of fines which would lead to compliance. Service of court papers could be complex. Occupiers changed from time to time.[71]Injunction was third. The court had an absolute discretion in granting an injunction, but the penalties for its breach were considerable and included eventual imprisonment. Before seeking an injunction, the authority had to have had regard to all relevant circumstances; there had to be clear evidence of a breach of planning control; and relief had to be a proportionate remedy in the circumstances. The public interest in securing compliance with the planning law had to be weighed against the private interests of the person against whom relief was sought. The report said:
"The Court has to be satisfied first that the authority has properly reached a final conclusion that the Gypsies/Travellers' continued occupation of the site could no longer be tolerated in the public interest, and second that it would be appropriate to force their removal, even if the effect would be to drive them onto the roads (if no alternative sites were available) and cause hardship of various types."
Compulsory purchase of the site was considered but not seen as a likely beneficial route.[72]The fifth course of action was direct action under section 178. The authority had to consider fully the implications of such a step for the personal circumstances of those affected. The decision could only be challenged through the courts on judicial review. But such a step might have to be accompanied by an injunction to restrain the occupiers from wilfully obstructing Officers or from returning to the site, and, if so, that would put the matter back into the discretionary jurisdiction of the court. A court might refuse to grant an injunction if the merits of the case and impact on the individual had not been adequately considered. The conclusions of the report were:
"Clearly the continuing existence of the caravans, hardcore and road scalpings on the site is in flagrant breach of valid enforcement notices and is a criminal offence. The development is by definition inappropriate in the Green Belt and as such is a consideration that should be given substantial weight, and has been given such weight by the Inspector on appeal in the case of Plots A-E. The same considerations apply to Plots 1-6. The key issue for Members to weigh in the balance therefore is whether the impact of taking action to secure compliance with the enforcement notices on the occupiers and owners of the site(s) is such that the public interest in enforcing planning control should be set aside in favour of allowing the unauthorised development to remain. It is for Members to judge the weight that should be attached to each consideration. If they conclude that the circumstances of the occupiers, and the hardship they will suffer if enforced against, are insufficient to outweigh the upholding of the Council's and national planning policies then Members must consider what option to pursue to secure compliance with the enforcement notices."
[73]There was then a consideration of risk management. The integrity of national and local planning policies could be brought into disrepute if a flagrant breach was seen not to be acted upon, which in turn could lead to other breaches. Action could be taken against the Council for its inaction, and: “The general reputation of the Council could be damaged from the perception of residents...particularly those directly affected by the current issue."[74]The risks of action were to the personal safety of all of those involved and that it might not achieve a lasting and satisfactory remedy. At the meeting the Councillors, according to the minutes, were reminded that in deciding whether to take action against the unauthorised development, they had to balance the public interest in securing removal of development against the personal circumstances of the occupiers, including their human rights and hardship.[75]Members of the public were able to address the Committee, and did so, including Josephine Casey and another occupier. There then followed what is minuted as a "full and strong" discussion. A motion to defer the item until, in its terms, the needs of the occupants had been fully assessed was rejected. The several options were considered, and it was determined that the harm caused to the Green Belt by the breaches of the enforcement notices was not outweighed by the impact of enforcement on the owners and occupiers of the sites, and so:
"with some reluctance...direct action was the only route to be taken."
[76]The protection of a very vulnerable part of the Green Belt could only be achieved by the removal of the caravans. There did not have to be an alternative site for the occupiers to go to, but the Inspector in the 2002 decision on plots A to E did not believe that it was impossible for them to find one. A statistical shortfall in provision did not turn a refusal of planning permission for a gypsy family to live where they wanted into a breach of Article 8.[77]Mr Drabble pointed out that the Inspector, on the facts of that appeal, attached very little weight to the personal circumstances of those who lived there. He had not been convinced that they could not find somewhere other than the roadside to live, whether on a Council site or on a site which they acquired for themselves. This contrasted with the assumption now made by the Committee in reaching its decision in these cases. The Hatchertang decision[78]An important part of Mr Drabble's case on the unlawfulness of the decisions related to the fact that the Committee was not referred to the decision of an Inspector of 8 March 2004 on an appeal made by a gypsy against the refusal of planning permission for a single residential caravan on a site nearby but to the east of those under consideration here. This was known as the Hatchertang decision.[79]The enforcement notice there had already taken effect in 1999, requiring the removal of a residential caravan. The importance of the decision lay in its conclusions on the need for gypsy sites and the planning balance struck, although individual circumstances would vary to some degree. This went to the consideration of how the District Council should approach any planning balance in the instant cases, and to the prospects of success of the claimants on their imminent appeals.[80]All land in Basildon outside the urban area is in the Green Belt, and all authorised and unauthorised sites are in the Green Belt, save one which was subsequently removed from the Green Belt. Since 1990 there had been an increase in site provision but a dramatic increase in unauthorised sites in recent years, from 27 unauthorised pitches in 1998 to 149 pitches in 2003.[81]There had been "two very large incursions of Irish Travellers", which had affected Hovefield sites (though the claimants here were not part of that) but even discounting those incursions, there was a significant level of unmet need for permanent sites in the district.[82]The Inspector in the Hatchertang decision acknowledged the difficulties faced by Basildon District Council and the problems created by those two very large incursions from outside the district. There had been no post-1989/90 calculations of needs, as required by Government policy, and there was a growing and significant residual need.[83]The Council had far more gypsy sites than any other Essex authority: it had about one-third of all the sites. There were no vacancies on any Essex Council-owned site, and waiting lists had been closed. The number of unauthorised sites had doubled in Essex between 2001 and 2003.[84]Mr Elvin showed me the Basildon District Council Gypsy and Traveller Site Monitoring Report of March 2005, which painted much the same picture. There had been a recent and very large increase in unauthorised pitches in the Basildon District Council area, and its proportion of the total sites in Essex had risen "exponentially". This is plainly something which Councillors would have been aware of.[85]The Hatchertang Inspector then considered other relevant criteria within the Basildon District local plan and concluded that only the locational criterion in relation to the Green Belt was not met. She next dealt with the personal circumstances of the occupiers, acknowledging that although there had been many difficulties with enforcement over the years in relation to gypsy sites, such action was highly likely here. There were only negligible chances of an authorised site being found in the next two years. An itinerant life was likely on the roadside or on other local land (implicitly unauthorised) in order to keep the children in local schools, and to keep their horses, but in reality that constant movement was unlikely to enable the children to be kept at school.[86]These various factors were then drawn together. The consequences for the family were said to be of considerable importance: "In weighing them against the undoubted harm that would be caused by allowing the appeal value judgments have to be made as to the relative weight to be given to needs and outcomes which pull in opposite directions. However, ultimately I consider that the need for the planning system to recognise and meet the particular land use requirements of Gypsy families, together with the excess of demand over provision of sites in the locality, the lack of a suitable and accessible alternative site for this particular family, and the hardship and disruption to their family life which would result from a dismissal of the appeal are of overriding weight in this case"; paragraph 59.[87]Precedent had been raised by Basildon District Council as a consideration, and Mr Elvin sought to rely on the Inspector's comments to answer Mr Drabble's submissions about the importance of this decision. It is a very understandable concern. The Inspector sought at paragraph 60 to offer some comfort:
"Some of those considerations are specific to the family involved and some are site-specific. It is possible that identical considerations may be found in other cases and that in those cases this decision may be regarded as a precedent. But, by definition, circumstances which are found to be very special, particularly those of a personal nature, will not create a precedent. Each case has to be considered on its merits and in the light of the particular relevant circumstances, and judgment has to be made in each case on the weighting to be given to those factors. While understanding the concerns of the Council regarding precedent, I do not consider that this is a factor which merits significant weight as a material consideration in this case."
[88]Article 8 did not fall for analysis in the light of her decision to allow the appeal subject to a personal condition, but the Inspector did comment that the harm which would be caused to the family outweighed the harm to the Green Belt here.[89]Basildon District Council challenged that decision in the High Court on a point of law. Sullivan J. rejected the application ([2004] EWHC 2759 Admin, (2005) JPL 942). Precedent was raised before him as a matter of concern.[90]Mr Elvin pointed to the impermissibility of using Hatchertang as a precedent, not merely in the light of what the Inspector said, but also in the light of the terms in which Sullivan J. rejected Basildon District Council's challenge to what she had said. Sullivan J. said that a combination of factors (site and personal) could amount to very special circumstances for granting inappropriate development in the Green Belt, but that the combination of factors which were sufficient for such circumstances on one site might well be different on another site, and insufficient there to amount to very special circumstances. Sadler’s Farm decision[91]There was a further appeal decision after the June Committee meeting. This was in respect of Sadler's Farm dated 12 October 2005. In that decision, the Inspector again found that there was an unmet need for Gypsy accommodation. No viable alternative site had been put forward, and there had been to quantitative assessment of need. Other policy changes which could affect how the County as a whole looked at the matter were at a very early stage. Basildon District Council’s decision of January 2006[92]The same Committee of Basildon District Council reconsidered its June decision on 24 January 2006. The delays as a result of these proceedings led the District Council to update the Members on the position. Guidance expected from the Government in the summer of 2005 was still awaited. A needs assessment for Essex was expected in March 2006. These proceedings and the injunctions were referred to. The personal circumstances of the occupiers were updated and more detail provided.[93]The Hatchertang decision was attached. The absence of reference to it in the June 2005 report had been a particular factor behind the granting of permission to apply for judicial review and injunction. This report also considered sites other than those the subject matter of these two actions. The Committee resolved to affirm its decision. Circular 1/2006[94]In February 2006 the Office of the Deputy Prime Minister published Circular 1/2006, which came into immediate effect, according to its terms. Its direct relevance is to the way in which this court should exercise any discretion and to the prospects of the claimants succeeding in their appeals. Local planning authorities are to conduct Gypsy and Traveller Accommodation Assessments as the first stage in planning to meet their needs. A regional spatial strategy will then determine numbers of pitches required from each District Council, which are to be translated into site-specific provision in the Development Plan process.[95]Mr Drabble put weight on what it said about transitional arrangements. Until the GTAAs are ready (and they would not be ready in time for the appeals) other means of assessing needs would have to be found. Where there was "a clear and immediate need...evidenced through the presence of significant numbers of unauthorised encampments...local planning authorities should bring forward DPDs containing site allocations in advance of the regional consideration of pitch numbers."[96]Mr Drabble contrasted other requirements in the Circular with what the June report had said in relation to assessing and meeting need. "LPAs will be expected to demonstrate that they have considered this information, where relevant, before any decision to refuse a planning application for a Gypsy and Traveller site and provide it as part of any planning appeal documentation."[97]Specific mention was made in this Circular of the use of temporary planning permissions where it was expected that circumstances would change by the end of the period of permission. Such a situation would arise if there were currently a significant unmet need and no alternative sites, but it was thought that that situation would change over time. Mr Drabble's submissions[98]Mr Drabble first submitted that section 178, when used in a case such as this, was in effect a residential eviction power, and, as was common ground, its use engaged Article 8 ECHR and indeed Article 1 of the First Protocol because the claimants owned the land in question, though that did not give rise to any separate issues. It therefore required justification under Article 8(2) and the interference had to be proportionate. Numerous European Court of Human Rights cases had so held, for example Chapman v. UK (2001) 33 EHRR 399.[99]Proportionality covered the decision to evict the caravan dwellers from the site and also the means chosen to achieve eviction. In a residential eviction case, the use of section 178 was necessarily disproportionate. There were no procedural protections for claimants if section 178 were invoked. It was always necessary to invoke the assistance of a court for procedural protection.[100]Procedural protection in proportionality was considered in Connors v. United Kingdom (2005) 40 EHRR, at paragraphs 83 and 84."83. The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.84. The vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the Gypsy way of life."[101]Procedural protection was also part of proportionality, as explained by Dyson LJ in R (Samaroo) v. Secretary of State for the Home Department (2001) EWCA Civ 1139, (2001) UKHRR 1150. That was a deportation case being considered on judicial review. Those tests were not diluted by Lough v. First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557 because that case involved competing private interests rather than (as with the present case) a conflict between an individual and the State.[102]What Dyson LJ said in Samaroo was this:
"19. I accept the submission...that, in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights?...That inquiry must be undertaken by the decision-maker in the first place. 20. At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?...The issue in such a case is not whether there is a less restrictive alternative to deportation as a means to achieve the objective. The sole question is whether deportation has a disproportionate effect on Mr Samaroo's rights under Article 8(1). 25. I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention right, the task for the decision-maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention rights on the other. 26. It is important to emphasise that the striking of a fair balance lies at the heart of proportionality... 28. Fair balance involves comparing the weight to be given to the wider interests of the community with the weight to be given to an individual's Convention rights. Some rights are regarded as of especial importance and should for that reason be accorded particular weight. Broadly speaking, the more serious the interference with a fundamental right and the graver its effects, the greater the justification that will be required for the interference."
[103]The consideration of proportionality in the immigration context is not affected by the subsequent consideration of that issue in Huang v. Secretary of State for the Home Department [2005] EWCA Civ 105, (2005) IAR 240.[104]Lough was a statutory challenge to the grant of planning permission by the First Secretary of State, on appeal, for the development of a twenty-storey building which it was said would breach the Article 8 rights of nearby residents. The Inspector had failed to say whether the interference was necessary or proportionate.[105]The passages in Lough upon which Mr Elvin relied were from the judgment of Pill LJ:
"43. It emerges from the authorities: (a) Article 8 is concerned to prevent intrusions into a person's private life and home, and in particular, arbitrary intrusions and that is the background against which alleged breaches are to be considered. (d) The contents of Article 8(2) throw light on the extent of the right in Article 8(1) but infringement of Article 8(1) does not necessarily arise upon a loss of amenity, and the reasonableness and appropriateness of measures taken by the public authority are relevant in considering whether the respect required by Article 8(1) has been accorded. (e) It is also open to the public authority to justify an interference in accordance with Article 8(2) but the principles to be applied are broadly similar in the context of the two parts of the Article. (f) When balances are struck, the competing interests of the individual, other individuals, and the community as a whole must be considered. (g) The public authority concerned is granted a certain margin of appreciation in determining the steps to be taken to ensure compliance with Article 8. (h) The margin of appreciation may be wide when the implementation of planning policies is to be considered." 49. The concept of proportionality is inherent in the approach to decision making in planning law. The procedure stated by Dyson LJ in Samaroo, as stated, is not wholly appropriate to decision making in the present context in that it does not take account of the right, recognised in the Convention, of a landowner to make use of his land, a right which is, however, to be weighed against the rights of others affected by the use of land and of the community in general. The first stage of the procedure stated by Dyson LJ does not require, nor was it intended to require, that, before any development of land is permitted, it must be established that the objectives of the development cannot be achieved in some other way or on some other site. The effect of the proposal on adjoining owners and occupants must however be considered in the context of Article 8, and a balancing of interests is necessary. The question whether the permission has 'an excessive or disproportionate effect on the interests of affected persons' (Dyson LJ at paragraph 20) is, in the present context, no different from the question posed by the Inspector, a question which has routinely been posed by decision makers both before and after the enactment of the 1998 Act. Dyson LJ stated, at paragraph 18, that 'It is important to emphasise that the striking of a fair balance lies at the heart of proportionality.'" 50. I am entirely un-persuaded that the absence of the word 'proportionality' in the decision letter renders the decision unsatisfactory or liable to be quashed. I acknowledge that the word 'proportionality' is present in the post-Samaroo decisions and the judgments of Sullivan J in Egan and Elias J in Gosbee, but I do not read the conclusion reached by either judge as depending on the presence of that word or on the existence of a new concept or approach in planning law. The need to strike a balance is central to the conclusion in each case. There may be cases where the two-stage approach to decision making necessarily in other fields is also appropriate to a decision as to land use, and the concept of proportionality undoubtedly is, and always has been, a useful tool in striking a balance, but the decision in Samaroo does not have the effect of imposing on planning procedures the straitjacket advocated by Mr Clayton. There was no flaw in the approach of the Inspector in the present case."
[106]Mr Drabble drew attention to the additional words of Keene LJ in which he pointed out that the justification under Article 8(2) included the rights of others such as the owners of the development site as well as the public interest. At paragraph 55, Keene LJ added:
"55. I agree with Pill LJ that the process outlined in the Samaroo case, while appropriate where there is direct interference with Article 8 rights by a public body, cannot be applied without adaptation in a situation where the essential conflict is between two or more groups of private interests. In such a situation, a balancing exercise of the kind conducted in the present case by the Inspector is sufficient to meet any requirement of proportionality."
This, said Mr Drabble, showed that it was a case concerning private interests and conflict.[107]Mr Drabble submitted that the intervention of the court would allow for a graded response to enforcement, including suspended committal orders, which created flexibility in achieving the goal of removal. The court would become the decision maker on the means of enforcement, which would avoid public order difficulties, and provide procedural protection. The court should be slow to sanction direct action where the injunction alternative existed.[108]In any event, if it was open to the local planning authority to choose the direct action route in a residential eviction process, Basildon D.C. had given no reason for selecting it over the injunction route. No particular course had been recommended. If the reason was that the District Council wished to avoid its discretion being supplanted by the court, as would happen if Mr Drabble's submission were right, that was a reason which the court should not countenance.[109]Mr Drabble distinguished two other cases in which the use of section 178 had been considered in a similar context, on the ground that these points had not been raised; R.(Lee v. Nuneaton and Bedworth District Council (2004) JPL 1618, and Mitchell v. Horsham District Council [2003] EWHC 224 Admin.[110]Mr Drabble's second main submission was that once an application to court was made by a local planning authority for an injunction under section 187B, or by claimants as here to prevent direct action under section 178 it was for the court to decide on proportionality. Here, it should conclude that direct action was disproportionate, on the facts as at the date of judgment.[111]Mr Drabble urged the relevance of the real prospect of the grant of planning permission either permanently or temporarily as a result of the appeal, the inquiry into it being but a short time off, and the absence of anywhere else for the claimants to go, together with the inevitable and serious disruption to their family lives. This disruption would be quite unjustified if the removal were only to be for a short time between now and a successful outcome to the appeal. The report did not even address the issue of the claimants' prospects of success, which were quite strong.[112]Porter showed that no deference was due from the court to the District Council’s views in its consideration of those issues. These were not issues of planning policy or planning judgment. There should be no difference in the approach to those issues between a section 187B application and an application to prevent the use of section 178. There should be a greater intensity of review of the District Council's decision, because Article 8 was engaged, than Wednesbury would allow.[113]The failure to have regard to the prospects of success was a failure to consider a material consideration, and gave rise to a separate ground of public law challenge. The disregard of the Hatchertang decision showed that the District Council had ignored not just the real prospects of success but also the approach to need adopted by the First Secretary of State which was rather different from the District Council's. The District Council's approach could be characterised as perverse. Its reconsideration in January 2006 did not remedy the failure to have regard to the prospects of success.[114]Indeed, if the January 2006 decision raised an issue for the court's discretion, it was itself unsatisfactory. Circular 1/2006 in its reference to the transitional provisions had adopted what had been set out in the consultation draft, to which the June 2005 report had said that little weight should be attached. In a paragraph not in the consultation draft, the Circular countenanced specific consideration being given to temporary planning permission in circumstances which Mr Drabble submitted applied here. David Clarke J had treated that as important in suspending the operation of an injunction until after a planning application had been determined in South Buckinghamshire District Council v. Smith [2006] EWHC 281 QB. Mr Elvin's submissions.[115]Mr Elvin submitted that the court did not have the original jurisdiction which it had had in Porter on an application by a Council under section 187B, and was exercising a supervisory jurisdiction. Samaroo had been qualified in the planning context by the decision in Lough. The planning balance which applied to the service of an enforcement notice, would apply to the choice of routes for enforcing the notice.[116]The supervisory jurisdiction attracted a less intensive review, in which deference should be afforded to the local planning authority as an elected decision maker, in particular with its regard to its judgment as to how to balance competing considerations. The planning decision making process inherently involved striking that proportionate balance. No separate test was required.[117]Mr Elvin referred to Chapman v. United Kingdom (2001) 33 EHRR 18, which concerned the refusal of planning permission for a gypsy caravan in the Hertfordshire Green Belt and an associated enforcement notice, which was challenged on the grounds that Article 8 had been violated by those measures. The European Court of Human Rights had said, at paragraph 92, that the judgment that there were legitimate planning objections to the use of a particular site as a gypsy caravan site was a matter that the European Court of Human Rights was not well equipped to challenge; but it continued: "92. ...In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.” [In paragraph 114, the court had said that it was not for that court to sit in judgment on decisions reached by local planning authorities which had weighed the competing interests.][118]Mr Elvin relied further on paragraphs 102 and 115 of Chapman:
"102. ...If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community. 115. The humanitarian considerations which might have supported another outcome at national level cannot be used as the basis of a finding by the Court which would be tantamount to exempting the applicant from the implementation of the national planning laws and obliging governments to ensure that every Gypsy family has available for its use accommodation appropriate to its needs."
[119]Those passages did not draw a distinction between whether the use of the land was in breach of the requirement that planning permission be obtained before a material change of use occurred and whether it was a crime to breach an enforcement notice, but they are clear in establishing the high relevance of the lawfulness or legality of an individual's acts. Mr Elvin also emphasised that Article 8 conferred no right to a home, although the availability of alternative accommodation is obviously relevant to the severity of any interference.[120]Mr Drabble distinguished that case from the present: there had there been no immediately available vacant site for Chapman to go to, but unlike here, there was no proof that there were no available non-Green Belt sites.[121]Mr Elvin also relied on Mid Bedfordshire District Council v. Brown [2005] EWCA Civ 1709, [2005] 1 WLR 1460. In that case, gypsies had moved their caravans onto a site in breach of an injunction granted under section 187B and had sought planning permission for their retention. A final injunction was granted, but the County Court suspended its operation until after that application for planning permission had been determined. The Council had appealed against that decision.[122]The Court of Appeal held that the suspension of the injunction failed to take account of the vital role of the court in upholding the important principle that orders of the court are meant to be obeyed and not ignored with impunity. The defendant gypsies could have sought a variation of the order but instead had cocked a snook at the court. In its conclusion at paragraph 25, the court continued:
"...They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to this court. 26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt. 27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour the essential suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control. 28. We would add that the defendants would have attracted more sympathy from the court for their plight if they had embarked on their plans to purchase and establish a caravan site so that they could integrate with the community by taking steps to obtain a site which had a reasonable prospect of being granted planning permission, by following the proper procedures for obtaining the necessary permission and by awaiting the outcome of the planning application instead of taking the law into their own hands, flouting orders of the court and asking the court to suspend the injunction in order to relieve them of the consequences of their unlawful conduct."
[123]The Court of Appeal supported those principles in South Cambridgeshire District Council v. Gammell [2005] EWCA Civ 1429. Injunctions had been granted against persons unknown under section 187B and orders had been made for the committals to prison of individuals in breach of the injunctions, which required gypsy caravans to be removed from land which they owned. The issue was said to be whether the principles in Porter applied where an injunction was granted against unnamed individuals who were not occupants at the time of the grant of the injunction. In neither case had an enforcement notice taken effect, but in each case the occupants were or became aware of the injunction, and in breach of its terms remained in occupation of the land.[124]It summarised the position, so far as material, as follows. The individual who found out that he was subject to that injunction was not to take action in breach of it, but was to apply to the court for a variation, to which application the Porter principles would be applied, and, if he had taken action which was in breach of the injunction, he should likewise take immediate steps to seek a variation or discharge, explaining why he had breached the injunction. The fact that it might subsequently be varied could not alter the fact of the past breach.[125]Mr Elvin also referred to the case of R. (Lee) v. Nuneaton and Bedworth District Council, where an injunction requiring compliance with an effective enforcement notice had not been obeyed. The local authority considered committal proceedings or section 178 proceedings, and decided upon the latter. Collins J held that the injunction proceedings were no bar to the use of section 178 to procure the removal of the gypsy caravans on the site.[126]In Mitchell v. Horsham District Council, Forbes J also concluded in relation to a gypsy caravan site that there was no reason why a local planning authority had to seek an injunction before or instead of using section 178, because of any human rights considerations. Direct action was considered by the Council in that case to be proportionate, and its conclusion was not irrational.[127]Mr Elvin emphasised that, in considering whether less intensive measures were available, there were opportunities for an application for planning permission, an appeal against its refusal, a decision to issue an enforcement notice, an opportunity for an appeal against that in which an appellant could also seek planning permission, temporary planning permission, or an extension of time for compliance, and time to comply before the enforcement notice took effect and non-compliance became an offence.[128]As was held R. (Alconbury Developments Ltd) v. Secretary of State for the Environment [2003] 2 AC 295, the planning decision making process did not require the intervention of the court in the selection of the enforcement measures to be deployed in order for the decision to be Human Rights Act compliant. Judicial review provided sufficient protection against unlawful acts.[129]In determining which of the range of powers available to it to enforce planning law should be used, there was no source for any obligation to put the court in the position of being the final decision maker. There was no statutory provision which said that section 178 could not be used in these circumstances. Nor was there any suggestion that anything less than the removal of the caravans could achieve the end in question.[130]The question was now what would be effective to secure compliance with planning law. Criminal prior proceedings would have the same aim, namely, the securing of the removal of the caravans, and, if effective, would be equally interfering.[131]Similarly, each route of enforcement had its advantages and disadvantages. Committal proceedings could be a disadvantage of the use of section 187B. The claimants here had no genuine willingness to comply with the law and were merely seeking to delay enforcement action. The Local Planning Authority had done the proportionality exercise and struck a balance within the reasonable range of decisions. Even allowing for a more intrusive review, following Daly v. Secretary of State for the Home Department [2001] 2 AC 532, deference was still due in a planning case. When considering whether the decision to take enforcement proceedings was proportionate at the second stage in the Samaroo approach, the court was exercising a review and not an original jurisdiction. The court could only intervene if it took the view that enforcement action was irrational.[132]No decision of the European Court of Human Rights, nor Porter, restricted the power of the local planning authority to choose between enforcement measures. Judicial review of the decision as to which measure to take constituted adequate procedural protection for proportionality in the planning context.[133]At this stage, the claimants were close to the committal stage seen in the Mid Bedfordshire and South Cambridgeshire cases. They were cocking a snook at the criminal law as much as those in those two cases were cocking a snook at the courts’ orders. The claimants' argument in effect that enforcement action should be stayed by the court and should have been stayed by the District Council until the planning appeal had determined the planning merits was an argument merely for prevarication. Where, as here, the court was exercising only a supervisory jurisdiction, the court's assessment of the planning merits or of the claimants' prospects of success on appeal was not relevant, so the basis for the court's intervention could only be that no reasonable Planning Authority could decide to start or continue with this form of planning enforcement in the circumstances prevailing. The planning merits, Mr Elvin accepted, were relevant to section 187B actions, and it was proper for the court to take some view of them in exercising its powers under that section.[134]Mr Elvin emphasised that between 2001 and 2003 only four out of eleven appeals had been allowed. The Hatchertang decision could not be regarded as a precedent. There was a distinction between the demand from gypsies to live in Basildon's Green Belt and the need to be met in the public interest of planning for gypsies to live in the area of their choice. The conclusion on need was not perverse.

Conclusions

[135]To my mind, the single question in this case is whether the decision of Basildon District Council on 9 June 2005 to take action under section 178 to enforce compliance with the enforcement notices was lawful. That question may have a number of aspects: it may receive a negative answer by reference to a number of the aspects canvassed before me; material considerations may have been ignored; the decision to take enforcement action or to pursue it through the section 178B route may have been disproportionate; but that question which I have posed is the question in this case. The debate as to the nature of the court's powers in dealing with this application for an injunction to prevent the implementation of the 9 June 2005 decision and comparisons with section 187B seems to me to be beside the point, if not founded on misconception.[136]If the decision is unlawful, the question of whether an injunction should be granted to prevent its implementation arises, and may readily be answered. Conversely, if the decision is not unlawful, I can see no basis upon which an injunction to prevent its implementation could be granted. That is not to say that Mr Drabble's arguments about the availability of section 187B in respect of residential eviction or about the proportionality of section 178 do not arise. It is merely that they are relevant to whether the decision of 9 June 2005 was lawful. If the council’s decision is lawful notwithstanding those factors, they do not then create a separate basis for the Court’s intervention arising only when an injunction is sought.[137]I do not exclude that a decision which is lawful when taken may become unlawful by the time of its actual implementation as a result of developments in circumstances, so that an injunction to prevent its implementation before further consideration might issue. But that would be a reflection of the unlawfulness of the proposed actions in the circumstances which would prevail when action was taken, rather than a conclusion that lawful actions were to be prevented.[138]Mr Drabble's arguments treated as similar two rather different types of injunction. Section 187B enables a local planning authority to invoke the court's assistance to prevent a breach of planning control, whether before or after an enforcement notice has taken effect, and whether or not non-compliance has become a criminal offence. It is a specific statutory power creating an original jurisdiction. The court, in the exercise of its own discretion, looking at all relevant factors, decides whether or not to grant an injunction. Its authority and its power to commit for contempt are engaged in the enforcement of planning control as a result of the exercise of the court's own discretion on an application made by the local planning authority for its assistance. The court can refuse an injunction notwithstanding the breach of planning control or the breach of the criminal law, and can leave it to the local planning authority to take such other steps as are open to it at the stage which enforcement proceedings may have reached.[139]This case, however, does not involve any attempt by the local planning authority to invoke the assistance of the court to enforce planning control. Indeed, the absence of the involvement of the court is a principal basis for Mr Drabble's submissions as to proportionality. This application is made by those who are the subject of action under section 178, who contend that that action is unlawful. It is only that contended unlawfulness which could found the court's intervention and determine the outcome.[140]The court's jurisdiction is not invoked to prevent a breach of planning control or to support the local planning authority in enforcing planning control. Its sole jurisdiction is the conventional High Court jurisdiction to prevent a public authority acting unlawfully. The fact that in each instance the court may exercise its own judgment as to whether or not to grant an injunction and has a discretion to grant or refuse it, cannot alter the fact that this court could not grant an injunction to these claimants unless they could show that the District Council's decision was unlawful. The fact that the claimants have commenced proceedings does not alter the requirement that they must show the decision to have been unlawful. Nor does it alter the basis upon which that unlawfulness can be shown.[141]I turn from those comments to make some general observations about proportionality in this context before turning to more specific arguments. I agree with Mr Elvin that it is possible, but very undesirable, unnecessarily to complicate the framework for a judgment on the lawfulness of the 9 June 2005 decision.[142]Mr Drabble put considerable reliance on Samaroo, and Mr Elvin responded with Lough. I have referred to the relevant extracts. The value, to my mind, of the decision in Samaroo is that it points out that whether a decision is proportionate and lawful may involve both the proportionality of the end and the proportionality of the means deployed to achieve that end. Whatever the logical sequence of consideration of the stages in Samaroo, the decision was not intended to impose a sequential straitjacket on the stages of decision making in all cases, especially outside the deportation context.[143]In this case, the reversal of stages one and two as described in Samaroo would seem more appropriate. Was the decision to remove the caravans lawful and proportionate? If so, was the means deployed, i.e. section 178, lawful and proportionate? I emphasise however that those are two separate aspects of the one decision, and I consider that problems have arisen in the analysis of this case because undue focus has been given to those two issues as separate stages.[144]The value of Lough is its emphasis on the way in which proportionality is inherent in the framework and substance of the planning decision making process. The balance between competing interests, whether they are private versus private or public versus private goes to the proportionality of the decision in substance and in procedure. Both facets are inherent in the statutory and policy processes involved. The fact that Lough was directly concerned with the question of whether the State had breached Article 8 in circumstances where it was holding the ring between competing private interests, which is not the direct concern here, does not mean that the general points in Pill LJ's judgment are any the less pertinent.[145]The state reached in the planning process is relevant to both aspects of the single question that is at issue. The enforcement process envisages a decision to issue an enforcement notice, an appeal, appeal rights against that enforcement notice (the grounds for which can cover planning merits, including individual circumstances) lesser measures than the removal of the caravans to remedy the harm, and time in which to comply with the requirements of the enforcement notice.[146]At the expiry of the appeal rights, the enforcement notice takes effect and the period for compliance begins. After the lapse of the period for compliance, non-compliance or further breach becomes a criminal offence. It is only then that section 178 direct action becomes an option. Action under section 187B would have been, however, an option throughout.[147]If planning permission is granted on a fresh application or on appeal, the enforcement notice is no longer effective from that date, but the prior breach remains a criminal offence, which can continue to be prosecuted. In this process, therefore, there are two stages at which the local planning authority, and the Secretary of State on appeal, can consider the individual merits: the enforcement notice appeal and a decision on a fresh application for planning permission. If an injunction were sought under section 187B the court would also form some view of the prospects of success of an enforcement notice appeal or a planning application or planning appeal.[148]It is at those planning merit stages where the need for gypsy sites, their individual needs, the harm to the Green Belt, and other policies, are weighed. The particular needs of gypsies and of gypsies individually form part of that process, and the question of any interference with Article 8 rights is properly to be considered at that stage, although it usually adds nothing to the consideration of personal circumstances, which form part of the question of whether very special circumstances exist for inappropriate development in the Green Belt.[149]There are, of course, no provisions exempting gypsies from compliance with the criminal law, which bites at the stage where the enforcement notice, with its appeal rights having passed, ought to have been complied with.[150]I see that decision making structure as generally demonstrative of proportionality in both the consideration of individual cases, balancing their needs against policies reflective of the wider public interest and in the framework of decision making, which includes appeal against the steps required and the time allowed for compliance. The grant of a temporary or permanent planning permission has always been an option available for argument through an appeal.[151]With those general observations, I then turn to consider the question of whether the decision to take steps under section 178 was necessarily unlawful and disproportionate because it involved a residential eviction. Mr Drabble suggested that section 187B provided the procedural safeguard of civil proceedings and the interposition of the court between the local planning authority and those to be removed, and, for that reason he submitted that section 187B was meant to be followed in order for the interference with Article 8 rights to be justified. I reject Mr Drabble's submission that section 178 should never be used, and never could be used proportionately in a residential eviction case and that only section 187B should be used, apart from criminal proceedings. There is nothing in the wording of the sections which creates such a limit on section 178 or an exclusive power in relation to section 187B, whether the residential occupier is a trespasser or not. The option of seeking an injunction does not create such a limit by any necessary implication. There may be circumstances in which section 178 is a proper, rapid and effective step. I do not accept that the interposition of the court is necessary to make the removal of residential caravans present on their owners' land in breach of the criminal law, a proportionate interference with Article 8 rights.[152]The enforcement of criminal law is properly to be given very considerable weight in the decision as to the steps to be taken to enforce compliance with enforcement notices which have taken effect. The European Court of Human Rights recognised, for example, in Chapman that the unlawful occupation of land was a factor telling strongly in favour of the proportionality of steps permitted by law to bring that occupation to an end. Where occupation is in breach of the criminal law, even more so will enforcement of the law be a proportionate step. Great, even decisive, weight can properly be given to the effective enforcement of the law, avoiding the law being set at nought and being seen to be flouted, suspended or dispensed with in favour of a particular group.[153]Gypsies have the opportunity for their special circumstances to be weighed at the planning merits stages and, where occupation of land for residential purposes is a criminal offence, the resolution of planning merits, if ultimately favourable to them, should precede rather than follow the occupation of the land in breach of the criminal law. The courts have clearly set their face against treating the special circumstances of gypsies as justifying breach of their orders and avoiding committal proceedings, as the decisions in South Cambridgeshire District Council v. Gammell and Mid Bedfordshire District Council v. Brown show.[154]Although the breach of the criminal law may not be so serious as the breach of a court order, because prosecutions can still be instituted to punish the individuals, none the less the criminal law is to be obeyed and its sanctions are intended to procure compliance. Whilst the strictures in those two cases may not all be apt for the breach of criminal law here, the principles are relevant. They are those which also underlie the concerns of Collins J in Lee and Forbes J in Mitchell.[155]The breach of the criminal law involved here permits and even requires an approach to the proportionality of effective steps to procure compliance with the criminal law, which puts rather more weight on compliance with the criminal law than would be the case if the breach of planning control consisted of an unlawful failure to obtain planning permission for a material change of use, rather than the occupation of land in breach of the criminal law. This is particularly important where the circumstances upon which the claimants will rely when putting forward their case at the inquiry will include reliance on factors such as the stability of the children at school, which arise as a result of the occupation of their land in breach of the criminal law.[156]They may well have improved their case, and created circumstances more favourable to them through their breach of the criminal law. That can properly be seen as bringing the law into disrepute. The occupation of the land by the claimants, which underlies Article 8, has always been in breach of the criminal law in the first place, and it may be permissible to entertain some doubts about the extent to which such acts can generate rights to be respected. But in any event, interference with them is justified by law and by the enforcement of the criminal law.[157]I see no reason for requiring a further intervention of the court before direct action is taken. A court decision is not necessary to sanction such action, let alone should it be one in which the court itself decides whether such action is necessary. The provision of an opportunity to contest such action, having regard to the harm done, the urgency of the matter, their prospects of success, and individual circumstances does not to my mind amount to a justification for requiring the interposition or prior sanction of the court.[158]The fact that those latter considerations are relevant to the grant of an injunction compelling the claimants to remove caravans does not mean that they must be argued before a court where direct action is at issue, which does not involve either the court's sanction or a court order which it would then enforce.[159]Nor do I see why selecting a power given by Parliament, which does not require the local planning authority to invoke the assistance of the court, becomes objectionable merely because it avoids court proceedings and the risk of the refusal of relief by the court in the exercise of its own discretion. That is of course different if the purpose of the selection of the route is to avoid a challenge to the lawfulness of the decision. But that is a very different issue.[160]The second way in which it was suggested that section 187B provided a procedural protection not available under section 178 related to the notice that was given as a result of the institution of civil proceedings. In this case, the claimants had noticed that direct action was a possible outcome of the 9 June 2005 meeting. They also had the subsequent notice of the decision to take direct action, and they had sufficient time to enable them to challenge the lawfulness of that decision.[161]Those matters together provide, in my judgment, sufficient procedural protection for direct action to be proportionate. I regard judicial review, with whatever intensity of review is appropriate for the decision, coupled with the procedures for substantive decision making, which the planning system involves, as providing all the procedural protection necessary for interference by direct action with Article 8 rights to be proportionate.[162]That said, which is sufficient to dispose of that issue in this case, I make it clear that I am not deciding that such notice is always necessary in every case involving the removal of residential caravans. I note that section 181(4) requires notice to be given in certain circumstances, and that sections 61 and 62 of the CJPOA 1994 may also do so, but for section 178 that may not always be necessary, for example, where preparations for violent resistance sensibly dictate that the timing of the action be not notified.[163]I have therefore concluded that it was not in principle disproportionate or unlawful for section 178 to be used, or to be used in view of the notice given. I turn to the question of whether the prospects of success are relevant to the exercise of the powers under section 178.[164]I should say by way of introduction to the specific arguments as to the substance of the decision that I accept Mr Elvin's general submission that the report to Committee was a careful analysis of the options open to the District Council at that stage, i.e. the stage where the sites were occupied in breach of an effective enforcement notice and in breach of the criminal law. It examined the personal circumstances of the claimants so far as was possible. The Committee heard from some of them. The Committee did consider delaying the decision and it did consider doing nothing, which was a possible option. It was not suggested by Mr Drabble that the report, whatever defects it might have in relation to the decision to use section 178, could not serve as a basis for a proper decision to institute criminal proceedings, nor for a decision to seek an injunction under section 187B.[165]The asserted deficiencies in the report were material to the decision to use section 178. There were two material considerations which Mr Drabble submitted the District Council had ignored in its decision to take section 178 action: the failure to consider the Hatchertang decision, and the failure to consider the claimants' prospects of success on appeal, which relate to the assertion that the District Council's conclusion that there was no need for further gypsy sites was irrational.[166]In reality, all these points are interconnected. The significance of the omission of reference to the Hatchertang decision is relevant to the failure of the District Council to assess the claimants' prospects of success in their appeal against the refusal of planning permission. Indeed, it is perhaps the basis for saying that an assessment of those prospects was necessary.[167]The way in which the need assessment was attacked drew substantially, although not exclusively, upon the conclusion of the Inspector in Hatchertang, which was arrived at contrary to the submissions of the District Council in that appeal. The approach to the Draft Circular was also criticised, but the relevance of the Circular is in its approach to need while full need assessments are undertaken and the distribution of site requirements amongst District Councils is resolved. I elaborate those points.[168]The Hatchertang decision was only potentially relevant because of the approach of the Inspector to the need for gypsy sites, which was unfavourable to the position of the District Council at the inquiry and which would be seen as hostile to the District Council's approach in the report. It does not draw the distinction favoured by the District Council between need and demand. It looked at the extent to which provision up to date had developed to match the numbers of those resorting to the locality. The decision was based in part on the absence of adequate provision, with the results that that would entail for the occupiers of the sites.[169]As an Inspector's decision, it would have some persuasive effect in relation to the approach adopted to need, though it could be less persuasive than a decision of the Secretary of State. It is not binding, and the District Council could argue that it was wrong as an approach, or distinguishable. Its continuing value may be affected by policy changes, changes in provision, and in the need or demand, when projected forward to the May 2006 appeal inquiry, as Mr Elvin suggested would be the case. It undoubtedly will be used legitimately to some effect by the claimants there.[170]It cannot be distinguished simply because the balance between personal circumstances and the situation of the site could not be a precedent, as both the Inspector and Sullivan J said, for other people and other sites in the Green Belt where very special circumstances would also be crucial. It is, however, relevant to the claimants' prospects of success in their appeal, because of what it says about need.[171]Turning to need, taken by itself, the District Council's approach to need or demand is not irrational or unlawful. The question of local connection could be a live issue in the assessment of needs. The extent to which the selection of Basildon District Council's Green Belt as the area of choice should be acceded, to as opposed to other District Councils' areas, is a matter for legitimate debate. There is nothing in the Hatchertang decision to show that it is unlawful. It is only by reference to planning policy and the decision making framework that that approach might be seen as unlikely to succeed.[172]The real point is thus again that the Hatchertang decision and the Secretary of State's potential approach seemingly do not accord to the District Council's arguments, the importance which the District Council would wish. Its assessments of need or demand may not be supported on appeal, and this is relevant to the claimants' prospects of success. If that issue is relevant to the decisions of the District Council, then Hatchertang would be a material consideration.[173]Thus, in my view, all of the criticisms of the June 2005 decision, so far as factors omitted from consideration are concerned, come down to the relevance of the claimants' prospects of success on appeal. The District Council denies this relevance.[174]It is at this point in particular that the analysis of the decision in the two stages derived from Samaroo becomes particularly problematic. The decision to enforce planning law, as opposed to doing nothing or engaging in compulsory acquisition, was not taken in isolation from the steps to be used. For my part, I cannot see why the question of the claimants' prospects of success on appeal would be relevant necessarily to a decision to institute criminal proceedings. A local authority might legitimately conclude that a criminal prosecution would be a waste of time if it had an application for planning permission which it was content with or very likely to grant, or if an appeal that was very likely to succeed was imminent.[175]I do not consider, however, that a decision to institute criminal proceedings without such an analysis, or even having reached a conclusion that planning permission would probably be granted, would be flawed or would be interfered with by judicial review so as to stay criminal proceedings. Nor do I consider that such proceedings could possibly be regarded as an abuse. Nor should Magistrates adjourn them so as to await the outcome of a planning process. The subsequent grant of planning permission simply does not provide a defence at all to the prior non-compliance with the effective enforcement notice. The prospective eventual and debatable grant of planning permission cannot do so either. There may also be every reason to institute criminal proceedings so as to punish infractions and to deter others, even where planning permission has been granted. It would be for the Magistrates' Court or Crown Court to decide to what extent, if at all, the planning merits or perceived prospects of grant should form a basis for mitigating any penalty.[176]I cannot see that the District Council would have erred in law in taking such a decision, but omitting to consider the claimants' prospects of success on appeal. After all, it is open to someone to comply with the criminal law by not entering the site while going through the planning process, which is exactly what Parliament has required through the statutory framework it enacted. The June 2005 report is a more than sufficient basis for a decision to institute criminal proceedings, and I do not think Mr Drabble sought to argue otherwise. But that position may be very different when other enforcement steps are at issue.[177]It is clear that if an injunction under section 187B is sought, the prospects of success in the planning application or on appeal are a factor which the court will consider, even where, as in Porter's individual case, occupation of the site was not just in breach of planning control but was a criminal offence in breach of an effective enforcement notice.[178]The prospects of success are closely related to the degree of harm done to the public interest. It follows that although the defence to an injunction sought in such circumstances would be made in court rather than by way of a judicial review challenge to the decision to seek an injunction, prospects of success are relevant for a local planning authority to consider before embarking on such a step.[179]Importantly one effect of the grant of an injunction is to make its enforcement by committal to prison a real possibility. There is no power to sentence someone to prison for an offence under section 179, so there has to be a stronger case for seeking an injunction than merely the enforcement of the criminal law whether by reference to the harm done, the urgency, the flagrancy of the breach, or the proven ineffectiveness of the criminal sanction.[180]It is easy to see why in those circumstances a court would wish to see whether the enforcement of actual removal through committal, was necessary, if there were good or better prospects of success in a planning application or an appeal. So the step to be taken may affect what considerations are material and have to be considered.[181]My view about the danger of splitting the one decision into a decision to enforce and a decision as to which steps are to be taken, is reinforced by the concern I have about the way in which the argument can proceed from a legitimate decision that the planning law is to be enforced, to the simple proposition that all that matters at the next stage is what steps will be most effective in enforcing planning control, an argument which rather risks ignoring the differing impacts which differing steps can have.[182]It is in this context that I specifically refer back to the approval by Lord Bingham in paragraph 20 of his speech in Porter of what Simon Brown LJ said in paragraph 41 of his judgment in the Court of Appeal, which I see as making precisely the point that it is not necessarily sufficient, and certainly not in a residential eviction case, to say that all that matters is the determination of which is the swiftest and most effective remedy available.[183]The power given by section 178, when used as I conclude the Act permits, for residential eviction is a drastic power. Even when notice is given, as here, of the decision and of the actual taking of the action (steps likely to be necessary for this mode of action to be proportionate), section 178 remains a drastic step in these circumstances.[184]It is in my view necessary for a local planning authority in deciding whether to use section 178 to consider and weigh various factors: the degree of harm done to the interests protected by planning control; the need for a swift or urgent remedy; the need to uphold and enforce planning control embodied in an effective enforcement notice and the criminal law; the personal circumstances and impact on the individuals of removal.[185]Part of that will involve the question of whether they have somewhere else to go or whether inevitably they will have to camp on the roadside, or in some other unauthorised Green Belt location of indeterminate harm. But it is also relevant, and the more plainly so where the conclusion is that the occupants have nowhere lawful or suitable to go, to consider the prospects of success which they might have on a planning application or on appeal, and the time scale over which that might be resolved.[186]I see a real difference in that respect between the relevance of that issue where the question is whether they should be evicted rather than whether they should be prosecuted and fined. Where an enforcement notice had recently been upheld on appeal, in which the personal circumstances had not been essentially different from those relied on by the current gypsy occupiers, (and many of the problems of health management and educational stability are common and the details do not involve significant variables), a local planning authority could properly conclude that it, or the Secretary of State on appeal, would probably maintain that position in the absence of a significant change of circumstances. Removal could well be proportionate. Conversely, an appeal decision might be imminent with obvious good prospects of success in the light of other decisions nearby; the removal of a group of gypsies for them shortly after to be reinstated after a successful appeal would be plainly disproportionate. In neither case however could complaint properly be made about a prosecution. I consider that for a decision to use section 178 to be lawful, consideration of the occupiers' prospects of success in a planning application or appeal and the timing of the resolution of that issue is necessary. If that is not done, a material consideration will have been ignored and action may well be disproportionate, depending on the prospects, the timing of the decision, the degree of harm, and so on.[187]The consideration of the prospects of success will usually entail consideration of that part of Government policy which bears on the appraisal of need and recent relevant decisions of Inspectors. It does not require (and it may not be possible to provide in any event) any very detailed assessment. It may be difficult, often, to go beyond distilling the hopeless from the reasonably arguable or the case with strong prospects.[188]A local planning authority may find it difficult before deciding an application to form more than a rough-and-ready preliminary view, or, if awaiting an appeal decision from a refusal, to do more than recognise what its prospects are on a like basis. But Central Government policy and previous decisions, along with the Development Plan, can afford the basis for a reasonably objective appraisal.[189]The timetable is also important, for it may be months before a planning application is made or before an appeal is even lodged against the refusal. An inquiry date may be several months' away, with the decision some time yet beyond that. Some consideration of that is important, to be seen in the light of the period of occupation already enjoyed, with whatever stability that has brought.[190]Those issues were not considered in the 9 June 2005 report. The position was clear that the Local Authority took the stance which it did in June 2005 on the basis of its own approach and considered whether it wished to change that stance in January 2006. But I do not see a discussion or analysis of the claimants' prospects of success in pursuing the opposite point. Had they been it might well have been open to the District Council to reach a lawful decision that section 178 action should ensue, even if the prospects on appeal for the claimants were good, because of the time which the appeal would take to be resolved. I do not regard the consideration given to the Hatchertang decision in the January 2006 report as sufficient to be a lawful decision in relation to that issue. Besides, at that date, seven more months of occupation had elapsed, and the public inquiry date was only five months' away. The council maintained its stance but reached no view as to its prospects on the appeal.[191]Accordingly, for those reasons, the decision of 9 June 2005 is quashed for the reason that a material consideration was ignored, and, without consideration of it a decision to take such drastic action could not be thought, and was not, proportionate.[192]I shall deal separately with the question of what is to be done in the case of Kinneally, who, as I understand it, has no appeal at all and to whom this consideration cannot apply.[193]The position, however, at April 2006 is this, in my judgment. The case of those who have appeals is plainly not hopeless. Government policy has arguably moved in their favour. I regard any objective appraisal as inevitably leading to the conclusion that the claimants have reasonable prospects of success, even if they cannot have been improved by occupation of their sites, over time, in breach of the criminal law.[194]I do not consider that a decision to use section 178 could now reasonably or proportionately be taken in advance of the appeal decision, in view of the imminence of the inquiry and the fact that it is an Inspector’s and not a Secretary of State's decision, and is accordingly likely to be quicker. The position may be different (indeed, very different) if the appeal fails and there is merely an attempted application to the court to pursue an appeal on a point of law.[195]As I have said, that does apply to Kinneally directly, because there is no appeal, but circumstances have changed and subject to any submissions, which I will hear, there is no reason in my judgment why the District Council should not consider the question of the exercise of section 178 powers again. I say "again" because plainly there are changes in circumstances since the decisions of June and January. Those changes of circumstances are the lapse of time, and, secondly, the fact that the other occupiers will not be moved before the outcome of their appeal is known.[196]For the reasons which I have come to (and I apologise for their length) the decision is quashed.[197]MR DRABBLE: My Lord, I am grateful. I ask for costs, and indeed for a Legal Aid assessment.[198]MR TAYLOR: My Lord, I do not resist that application. I do have an application of my own, for permission to appeal.[199]MR JUSTICE OUSELEY: Before we turn to that, there is this slight wrinkle about the claimant who has no appeal. As I have made it clear, I am against you on your section 178 point. You have succeeded on your appeal point, the prospects of success and material consideration point, which does not really bite on her. Because there is that distinction, are there further submissions which either of you want to make in relation to the Kinneally position, as a result of what I have decided? I am not seeking submissions that I should change my mind. I am just concerned that as a matter of where the position has been left it is sufficiently clear.[200]MR DRABBLE: I understand what your Lordship is saying is that the District Council should reconsider whether or not direct action is appropriate in the light of your Lordship's judgment and the imminence of the appeal in relation to the other cases.[201]MR JUSTICE OUSELEY: Yes, they are entitled to. They do not have to reconsider, but they cannot act on the current decision. If they do reconsider, they have got to reconsider in the light of those factors.[202]MR DRABBLE: Exactly. We should, no doubt, make submissions to at least wait for the appeal until we know the planning outcomes, and conduct the appeal after that.[203]MR JUSTICE OUSELEY: Yes. So you do not oppose the application for costs? There will be an order for costs in favour of the claimants.[204]MR DRABBLE: And a Legal Aid assessment.[205]MR JUSTICE OUSELEY: Yes, and a Legal Aid assessment. Do you have an application for leave to appeal?[206]MR TAYLOR: Indeed, my Lord. The basis for the application is simply that the Council did in fact have regard to the prospects of success in the June Committee report by reference to the fact that it took into account all of the relevant planning circumstances, and the personal circumstances of the claimants, and weighed those in the balance and formed a view on the planning merits.[207]MR JUSTICE OUSELEY: That is the bit which I just cannot see, I am afraid. As I said, it seemed to me that although you considered your view, which I entirely accept, you considered your view of how you as a Planning Authority would balance the factors. You did not ask yourselves: how is the Secretary of State going to approach this? When you looked at it in January, you said to yourselves again: how does Basildon think it should resolve the conflict between these issues? It said we will resolve them in the same way. You did not say: is the Secretary of State likely to look differently on it? That is the problem I have with your decision. I cannot see where you are going to get that argument off the ground.[208]MR TAYLOR: I am going to make the bold submission that that particular approach is a lawful approach, which in effect requires a Local Planning Authority when considering whether or not to exercise the section 178 powers, to ask itself what are the prospects of success with regard to the views that a reasonable person might take of the planning merits of a broad range of reasonable views that one might have, and what is the outcome of that approach. That particular approach is lawful because it requires such a broad range of views to be taken into account. There are many ways that one might view, for example, the impact of a caravan on the Green Belt and public amenity, and all those sorts of factors. In essence, my main submission is very brief, that in essence the requirement that your Lordship is seeking to impose upon a Local Planning Authority in those circumstances is not one that says that all they need to do is form their own view, and forming a view on the planning merits in an objective sense is not something that they took account of.[209]MR JUSTICE OUSELEY: There is a difference. I am not quite sure. Are you saying that it is not relevant or are you saying that it is not possible, or are you saying, "We did it?"[210]MR TAYLOR: I am saying that it is not possible, and I am saying that what we did do is all that we needed to.[211]MR JUSTICE OUSELEY: I am going to refuse leave. It seems to me that in the way you formulated your position in the end, that it was not possible to form a view on the merits and you did all you need to do, confirms my judgment that in fact you did not have regard to the prospects of success. It is possible to form a view on the merits, particularly if it is done in the rough-and-ready way in which I have contemplated. After all, it is the sort of view which might be formed in relation to whether a case was so hopeless that costs might be awarded against or in favour of a Local Planning Authority, which authorities are quite able to consider. I am also a little surprised to hear it submitted that the Local Authority cannot do that which the House of Lords suggests the court should do, with of course its less adequate appreciation of all the factors. So I refuse leave.[212]MR TAYLOR: My Lord, I am grateful. I have one further matter, which is to ask for the time for making an application to the Court of Appeal to be extended, given the Easter vacation.

MR JUSTICE OUSELEY: Yes.

[214]MR TAYLOR: Normally, we would have fourteen days.

MR JUSTICE OUSELEY: I will extend it until after you receive the transcript.

[216]MR TAYLOR: Fourteen days after receipt of the transcript.

MR JUSTICE OUSELEY: Yes, fourteen days after receipt of the transcript.

[218]MR TAYLOR: My Lord, I am obliged.

Cited in 6 later judgments