Smith, R (on the application of) v South Norfolk Council [2006] EWHC 2772 (Admin)

Case No CO/5906/2006[2006] EWHC 2772 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 10 th November 2006
Before
MR JUSTICE OUSELEY
Between
THE QUEEN ON THE APPLICATION OF LISA SMITHClaimantSOUTH NORFOLK COUNCILDefendant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr C George, QC and Mr M Willers(instructed by The Community Law Partnership) for ClaimantMr S Bird (instructed by Sharpe Pritchard) for Defendant
JudgmentOuseley J :
[1]The Claimant is one of a group of Romany gypsies, made up of three inter-related families, who have travelled and lived as one unit or extended family. The group is 24 strong and includes 13 children. They have long-standing links with South Norfolk.[2]In October 2003, the Claimant and the group bought and moved with 10 caravans on to a 1.5 acre site between Denton and Earsham in South Norfolk. This Denton Road site is also known through its description in two enforcement notices issued in November 2003 under the Town and Country Planning Act 1990 in part as “land north of Kingsland Farm” and in part as “land adjacent to Kingsland Farm”.[3]The two enforcement notices required the use of the land for a residential caravan site to cease. An Inspector upheld the notices in a decision of August 2004 but extended time for compliance to 12 months from the date of decision, ie until 18 August 2005, with a short additional period for the removal of hardstanding. There was no ground of appeal based on the planning merits because the requisite fee had not been paid.[4]Meanwhile, in March 2004, the Claimant’s group had sought planning permission for the continued use of the land as a residential caravan site, but this was refused in April 2004. Their appeal against that refusal was heard at an Inquiry and was dismissed in June 2005. There was no legal challenge to that decision. However, during the course of the Inquiry, the Council resolved to extend the time for compliance with the enforcement notices to 11 November 2005. From that point on, the continued use of the land as a residential caravan site by any member of the group became a criminal offence.[5]The Council was not unaware of the problems faced by gypsies in finding sites upon which they could lawfully stay and it was encouraged by the Planning Inspector in June 2005 to do what it could to find a site for this group. In October 2005, its Strategic Housing Service sought planning permission from the Council for the use of three sites as residential caravan sites. Two applications related to Council owned land and temporary planning permissions were sought, on the Costessey site for 6 months, and on the Rushall Road site for 2 years. Both were envisaged as sites which would accommodate this Denton Road group of gypsies. The third site, at Spirketts Lane was not owned by the Council and its permanent development would have required compulsory purchase. It would have been a possible permanent site for the Denton Road group, but was not so clearly earmarked for them. In December 2005, all three planning applications were rejected by the Council’s Planning Committee. These refusals could not be appealed by the Strategic Housing Service because it is part of the Council, nor by the Claimant’s group as they were not the applicants for permission.[6]On 7 December 2005, a few days before the decisions were made on those applications, the Council’s Head of Planning Services, who had previously sought human rights information from the group, wrote to them. He gave them what has been called a Direct Action Notice; this is not a statutory notice but it adopted a formal style and warned the group which continued to occupy the Denton Road site that unless they had left the site and complied with the two enforcement notices by 24 July 2006, the Council would exercise its powers under s178 of the TCPA 1990 to enter upon the land to remove them, their caravans and ancillary buildings and would seek to recover the costs of doing so from them. It was accompanied by a letter which set out the reasons for taking that course of action. No formal challenge was made to the lawfulness of that decision.[7]In March 2006, the group sought temporary planning permission to use the Denton Road site for three years as a residential caravan site; the previous application had been for its permanent use. This was considered by the Planning Committee on 23 May 2006 and the notice of refusal was sent out a week later.[8]However, on 15 May 2006, at a meeting of the full Council, the Council decided to authorise the funding for the removal of the group from the site by direct action. On 24 May 2006, following the refusal of temporary permission, the Head of Planning Services wrote to the occupiers, enclosing the report which he had written for the Planning Committee about that application, saying that he had decided to refuse any further extension of time before enforcement action would be taken, in the event of an appeal against the refusal of permission. That letter of 24 May contains the first decision under challenge in these proceedings. He reminded them in a letter of 7 June 2006 of the 24 July 2006 deadline and of the decision to take action under s178. There was indeed an appeal lodged on 16 June 2006 against the refusal of temporary permission. These proceedings were lodged on 17 July 2006 and the next day, Forbes J gave permission and restrained the Council from evicting the Claimant and her family from the site.[9]On 6 August 2006, the Claimant applied for planning permission for the use of the Rushall Road site as a residential caravan site for the group. The Council refused to delay taking direct action while that application was decided. This refusal of delay, of course subject to the effect of the Court’s Order, was contained in a letter of 14 August 2006 from the Council’s Solicitor. This is the second decision which is under challenge by way of an amendment to the proceedings.[10]After the hearing was concluded and before judgment, I was informed that the Council on 20 September 2006 had decided to grant permission on this application. It was formally granted on 2 October 2006. I have had further brief written submissions on its significance.

The use of s178

[11]The first argument raised by Mr George QC for the Claimant was that it was unlawful for a Council to use s178 powers to effect a residential eviction, or at least to do so without seeking the prior approval of a Court effectively by seeking an injunction. To do otherwise would always be disproportionate. I had considered that issue recently in R (O’Brien) v Basildon DC [2006] EWHC 1346 Admin. I decided that there was no inherent restriction on the powers in s178 such as would prevent a planning authority using them for the purposes of evicting people using land for a residential purpose in breach of an enforcement notice which had taken effect; paragraphs 125-163. It would not always be disproportionate to use them for that purpose.[12]Briefly, the terms of s178 plainly do not exclude residential evictions from its ambit. The section only bites once the activity to be removed has become a criminal offence and after consideration of the planning merits in the decision to issue the enforcement notice in the first place, after an opportunity has been given in the appeal system for the merits to be considered, and after the appropriateness of that enforcement measure has been considered. No application to the Court was necessary to make the use of those powers lawful, and the option which a Council had of seeking an injunction in Court did not compel it to do so. Mr George did not seek to persuade me that I had erred in that decision but he reserved the right to challenge it on appeal in this case, in which I am applying it.[13]Mr George developed what he said was a different submission as to why s178 could not lawfully be used to effect a residential eviction from the one which he says was rejected in O’Brien. He submitted that, in order to make s178 compatible with Article 8 ECHR, it had to be interpreted or “read down” pursuant to s3 Human Rights Act 1998. S178 had to be read as if words such as “except in the case of a residential eviction” or “except in the case of a residential eviction which has been authorised by the court” were included. He submitted that O’Brien had decided that the use of s178 was not necessarily disproportionate, whereas his argument that a “reading down” was necessary only required that its application be disproportionate, and in breach of Article 8 rights, in circumstances which were not fanciful. It was easy to envisage circumstances in which the use of s178 would be disproportionate.[14]In paragraphs 31-49 of O’Brien, I set out the legislative context of s178, and s187B which enables a planning authority to apply for an injunction to prevent breaches of planning control whether or not an enforcement notice had taken effect or had even been issued. I referred to the discussion of s187B in South Buckinghamshire DC v Porter [2003] UKHL 26. [2003] 2AC 558. Other cases on the application of s178 to residential evictions were also noted elsewhere in the judgment. I shall not repeat those matters here.[15]I do not accept Mr George’s submission. The words of his submissions are different from those which I rejected in O’Brien, but the thinking behind them is essentially the same. I decided in O’Brien that s178 could lawfully be used to effect a residential eviction. I also decided that it was not necessary for a planning authority instead always to invoke the assistance of the Court under s187B, if a residential eviction was sought. I contrasted the role of the Court hearing an application by an occupier for an injunction to prevent the use of s178 on the grounds that its use would be unlawful, with the role of the Court in deciding whether or not to grant injunctive relief to a local authority under the specific original jurisdiction which s187B created. I did not decide that the use of s178 would always be lawful in a residential eviction; it is a discretionary power and there could readily be procedural requirements such as notice which a particular case might call for, and substantive factors which had to be considered, such as whether there was an alternative location for the occupiers to move to or a reasonable prospect of success in an imminent planning application or appeal.[16]Turning to the specific way in which Mr George argued the point, in order for any “reading down” to be necessary, it has to be shown that the interpretation which would otherwise be given to the statutory provision would be incompatible with Convention rights. It does not matter whether such incompatibility would arise in all cases in which the provision applied or only in the instant one. The postulate for Mr George’s submission is therefore that s178 has to be read down to avoid its otherwise lawful use bringing about an eviction in breach of the occupiers’ Article 8 rights. That postulate is without foundation. S178 is a discretionary power. If an authority proposed to use it in an unlawful way, its decision would be judicially reviewable on the grounds that it would breach Article 8 without a proportionate justification, and as here, interim relief would be available to enable its lawfulness to be tested.[17]I see no substantial difference between the contention, rejected in O’Brien, that the use of s178 in a residential eviction case was inevitably disproportionate, and Mr George’s contention that the words “except in the case of a residential eviction”, which would apply to every residential eviction, had to be read in to achieve compatibility with the ECHR. The justification for his contention was that the use of s178 could be disproportionate in some cases, which of course I accept. But Mr George’s remedy presupposes a problem which does not exist; it presupposes that that disproportionate use would be lawful. But it would not be lawful; it would be an unlawful use of a discretionary power in the individual case on the grounds that Article 8 rights were disproportionately interfered with and judicial review would be available to remedy it. The risk is not of statutory incompatibility with the ECHR but of unlawful use of the discretionary power.[18]There is no need to read in a requirement that the prior approval of the Court be sought in order for the Court to be able to intervene in advance of an actual eviction. The need for notice goes to the rationality and proportionality of its use in any given case. The potential for a discretionary statutory power to be used unlawfully does not entail reading into the statutory provision a requirement that it be used only after the sanction of the Court has been obtained. Still less does compatibility with ECHR require such an interpretation. I see very little difference between that contention and the contention rejected in O’Brien that an application to the Court for an injunction under s187B had to be made in every case.[19]It appears to me that the common error in the submissions in O’Brien and in this case on the scope of the powers in s178, lies in the failure to give adequate recognition to the fact that the power is a discretionary one, the lawfulness of which is fully subject to judicial review on grounds which include the proportionality of any interference with rights protected under ECHR.[20]It was suggested that the Council had ignored the possibility of seeking Court approval to direct action in its December 2005 decision, and had thus ignored a material consideration. However, there is no timeous challenge to that decision and the Council had considered the alternative of seeking an injunction. I do not regard that sort of unnecessary but theoretically possible course of action as a material consideration at all.

The impact of changes of circumstances

[21]Mr George’s next submission was that the decision of 24 May 2006, refusing any extension of the 24 July 2006 departure deadline were they to appeal against the refusal of the application for temporary permission on the Denton Road site, was irrational and disproportionate because of three material changes of circumstance: the changed position in relation to the availability of an alternative site, the effect of a new ODPM Circular 1/06 “Planning for Gypsy and Traveller Sites”, published in February 2006, which was said to enhance the prospects of success for gypsies in planning applications and appeals, and the planning prospects of a temporary planning permission, from which they could benefit, being granted within less than a year. These contentions require some examination of the relevant decisions and documents.[22]I start with the Inspector’s decision of June 2005 dismissing the appeal against the refusal of planning permission for residential caravan use of the Denton Road site. The terms of the decision letter were important in the Council’s decisions subsequently. The Inspector noted that the period for compliance with the enforcement notices had already been extended on the enforcement notice appeal, so that it would cover the period of the June 2005 appeal, and the Council had further extended the time for compliance after which occupation would become a criminal offence until November 2005, after a 12 week adjournment of the planning appeal.[23]The Inspector considered the development against the recently adopted local plan policy, notwithstanding reservations about its shortcomings in relation to Government policy, notably the absence of an assessment of the need for the provision of gypsy sites and the absence of the identification of sites or potential locations for sites. She contrasted the area’s long established agricultural and remote landscape, and its peaceful natural environment with the effect of the use on the appeal site, which had been transformed by the hard surfacing, fencing and caravans, lights at night and all the associated buildings and paraphernalia of an alien intensive urban style development. There was a significant increase in traffic on the quiet local road, which was not suited to that traffic and which would be detrimental to highway safety.[24]There were three dwellings immediately adjacent to the site and three more about fifty yards away. Their occupiers would have had reasonable expectations that the site would continue in its former agricultural state and use and that they would be consulted about any change beforehand. The visual impact had been greatest on those closest to the site “whose outlook and enjoyment of their home surroundings have been severely compromised during both day and night. The feeling of total privacy within the side rooms and gardens of Kingsland Farm has been lost, as has the quiet enjoyment of those rooms and areas.” Noise would be expected in any residential area and that generated by a gypsy caravan site would be greater than in most residential areas. But this site had been a quiet, inactive field in a quiet rural area. The residents of the houses faced a substantial reduction in their amenities. The use harmed materially the setting of two listed buildings. Nor was the site well related to local services and facilities.[25]However, in the wider area around South Norfolk, there was an indication of shortfall in authorised sites, of a growing mismatch between the supply of and demand for gypsy caravan sites with a doubling of the number of unauthorised sites in two years, and a waiting list for the public sites. This suggested a need for more authorised permanent residential sites, “with the numerically greatest immediate need arising from the occupiers of the appeal site....” There was no dispute as to the occupants’ status as gypsies, and the Inspector accepted that they had a need for a residential caravan site or sites. They had not occupied the housing which they had been offered at one time. She recognised that the families formed a group, akin to an extended family. They had made approaches to several Council sites over the years, without success. The regular enforced moves had made education for the children virtually impossible, until they moved on to the appeal site. They all had a clear need for a permanent site, and their inter-dependence suggested that a single site was needed. There was no site identified by the Council which might accommodate them, though it intended in a future planning process to do so. The families had few resources with which to purchase another site and a base was necessary if work was to be obtained.[26]The Inspector continued:
“The alternative accommodation options open to the families, were they required to leave the appeal site in accordance with the requirements of the enforcement notices, are extremely limited. Unless suitable and affordable land becomes available a return to unauthorised and itinerant camping will be inevitable. A return to an itinerant lifestyle, made all the more difficult by the arrival of additional children and the medical conditions suffered by several of the occupants (see below), is clearly highly unsatisfactory and would represent significant hardship. The Council appear to be close to starting a process of needs assessment and site identification, but a comprehensive, District-wide study and search process, with the need for public consultation, could easily take two or three years as a minimum and the needs of the occupiers of the appeal site are immediate.”
[27]She set out the educational needs of the children and the way in which they had started to attend school since being at the site. An itinerant lifestyle, moving from one unauthorised site to another, would make continuity of education extremely difficult and waste much of the good work which had already been done. There were a number of not uncommon health problems which would be harder to deal with without a permanent site.[28]She concluded that the considerable factors in favour of the continued occupation of the site did not however outweigh the contrary factors: breach of the development plan policy, harm to the character and appearance of the local area, to the amenity of local residents, and to the setting of the listed buildings and the traffic effects.[29]The Inspector then turned to the ECHR, and in particular to whether the considerations adverse to the occupants warranted the interference with their Article 8(1) rights which removal would entail. She said:
“Dismissal of the appeal would, in all likelihood, require the occupants to vacate the site without any certainty of suitable alternative accommodation being readily available. I recognise that this would represent a substantial interference with their home and family life. However the harm which has been and would continue to be caused by the development, in terms of its effect upon the visual amenities of the area and those of nearby residents, as well as the highway and the rights and freedoms of others is considerable.”
[30]No conditions could overcome the disadvantages she had identified.[31]Finally, she considered whether a temporary permission for three years should be granted, to allow alternative sites to be identified through the incipient LDF process. Its two year timetable for the identification and adoption of sites was, she thought, challenging. She did not think that the Denton Road site would emerge from that process. She concluded:
“In the mean time it would be unreasonable, especially to nearby occupiers, to permit continued occupation for several years because of the possibility that the site might be selected for permanent use. While a temporary permission would lessen the interference with the Art 8 rights of the site occupants, it would also represent an on-going, and in my view unacceptable, interference with those of their neighbours. A dismissal of the appeal would also make it clear to all parties that an alternative site is required for the occupants within a timescale considerably shorter than that of the LDF or Action Plan. It can only be hoped that their immediate accommodation needs can be addressed with some urgency by the Council and site occupants and a mutually agreeable solution found.”
[32]Before the time for compliance with the enforcement notices expired on 11 November 2005, the Strategic Housing Service had applied to the Council for planning permission on three sites. Part of the expressed rationale for the applications was the looming expiry of the time for compliance and the difficulty of anywhere being found for this group, because of the absence of vacancies on authorised sites, the number of unauthorised but tolerated sites and the increasing number of gypsy families in the area. But that deadline passed without a decision on the applications, which were controversial and could not realistically be decided within the short time between submission and 11 November 2005.[33]The Council had to consider what to do about continued occupation of the site which by now was not just in breach of planning control but had become a criminal offence. Its Head of Planning Services, Mr Tomlinson, sent the “Direct Action Notice” dated 7 December 2005 accompanied by a letter which explained why. He obtained updated information on the educational and health needs of the group, and he had also considered information from Strategic Housing about how long it would take to lay out for occupation one of the sites for which it had sought planning permission, assuming that permission were granted. He said that in the light of the Inspector’s conclusion that the interference with their human rights did not outweigh the continued interference with those of the residents nearby the Denton Road site, he could not give significant weight to the continued health and educational issues, nor to the absence of an alternative site ready for occupation, nor had they told him of any alternative which they might be pursuing. Even if a site were to have planning permission now, it would take until 1 July 2006 for it to be ready for occupation.[34]He then said:
“There is a reasonable possibility, in your favour, that if I were to defer until that date my requirement for you to vacate the present site, it may be possible that the situation of requiring you to vacate with no alternative site to go to could be avoided. I judge that, in determining the timescale after which the Council should take direct action to clear the site I can and should take that specific reasonable possibility of relocation into account in setting the date for the Direct Action Notice.”
[35]That 1 July date was then extended to 24 July 2006 to take account of the end of school term, which overall period would cover various expected confinements. Mr Tomlinson said in his witness statement that if the group did not leave voluntarily, he concluded that no action short of their removal under s178 would procure compliance with the enforcement notices; so prosecution and seeking an injunction were discounted. The extended period caused some local outrage as it was.[36]The report to the Committee on the three SHS planning applications was careful and thorough. It referred to the requirement laid upon the Council by the Inspector that it take urgent steps to find a permanent site for this group, and identified the criteria which had been adopted for that purpose. Despite an extensive search, only one site for possible long term use had been found but that would entail compulsory purchase, and possible temporary sites on Council owned land were therefore examined and two were identified as well. This was specifically to address the immediate problems faced by this group.[37]Among the policies considered was the draft of what was to become Circular 1/06, but the report commented correctly that only limited weight could be given to it as a draft for consultation, as the Inspector had also said in her decision letter. There were many objections to each site. It was recommended that the planning objections to one temporary site were too great for permission to be granted. But the report recommended that permission be granted for the permanent site at Spirketts Lane and for the temporary site at Rushall Road. The latter alone would be limited to occupation by the Denton Road group. A frequently raised objection was to the litter and untidiness which often accompanied gypsy sites but the report commented that the Denton Road site had always been extremely neat and tidy.[38]Permission was however refused by the Committee for all three sites at a meeting attended by 500 members of the public and after considerable lobbying by them. Local opposition was vociferous and there had been a hostile and in parts very unpleasant campaign against the proposals.[39]Mr George submitted that this refusal changed the basis upon which the Council had decided to take direct action. The decision to do so and to wait until July was predicated on the assumption that one of the three sites would receive planning permission and be available for the Denton Road group to move onto so that it would not have to resort to unauthorised road side camping.[40]In February 2006, Circular 1/06 was issued. This Circular was the second material change in circumstance upon which Mr George relied. The importance of this, according to Mr George, lay in its avowed intention to increase significantly the number of authorised sites, to recognise, protect and “facilitate” the travelling way of life of gypsies while respecting the interests of the “settled community”, and in its requirement that where there was an urgent need to make provision, site allocation proposals should be considered in advance of the core strategy for site provision. There was also more positive advice on temporary permissions than had been found in the draft Circular. He drew attention to what he said was a not dissimilar case to that of the Denton Road group, in which the same Inspector had granted permission in March 2006 referring to the Circular; this showed the change wrought by the Circular. Mr Bird for the Council pointed to the differences between the cases.[41]The third material change related to the prospects of a temporary planning permission being granted, within a year according to the Claimant. In March 2006, the Claimant had made an application for a temporary permission in respect of the Denton Road site even though the prospect of a temporary permission controlled through conditions had been considered and rejected by the Inspector in the earlier appeal. It was supported by the Council’s Strategic Housing Service because there was nowhere else for the group to go, but was refused on 23 May 2006, on the recommendation of the Planning Officer. An appeal against that refusal was lodged on 16 June 2006 and a decision was expected by the end of this year. Mr George contended that there were reasonable prospects of success in that appeal and that those prospects were relevant to the rationality and proportionality of the first decision under challenge, not to delay the use of s178 powers pending outcome of the appeal, which followed immediately on from the refusal of permission.[42]There were three reasons for refusal, as expressed by the decision: impact on residential and visual amenities, impact on safe and free flow of traffic, which the admitted shortfall in sites was insufficient to overcome. The Council adopted the Inspector’s appraisal of the human rights of the group and the residents. But it did not rely on three matters which had contributed to the dismissal of the appeal: impact on the rural character of the area, poor access to services and facilities, and impact on the setting of listed buildings.[43]The report on this application was again careful and thorough. It recognised that the Circular was a major and new material consideration which placed emphasis on reducing the number of unauthorised sites, and on avoiding eviction from unauthorised sites without an alternative to move to. It recognised that this group were due to be evicted in July and would have nowhere to go to. There was a shortfall in the provision of suitable sites in the district. A temporary consent should be considered, according to the Circular, where there was an expectation, as here, that a suitable site would be forthcoming within three years through the Local Development Framework. There were strong considerations in favour of the grant of permission, despite the dismissal of the earlier appeal. The question for members was “whether the new Circular and the lack of suitable alternative sites are now sufficient to overcome the deficiencies identified by the Inspector.”[44]The report concluded that the impact on the character of the wider area could not be regarded as sustainable in the light of the Circular, the temporary nature of the application and another appeal decision. The highway objection remained. The Inspector’s conclusions on residential amenity and human rights were repeated and adopted; it would be unreasonable for the residents to have to live with those adverse impacts for another three years. The new Circular meant that the objection in relation to access to services and facilities could not be defended at appeal and the listed building setting argument was irrelevant to a temporary permission. The conclusion focused on residential amenity, the absence of an alternative site and the Inspector’s evaluation of that issue.[45]At the date of the first decision under challenge, that was the only prospective appeal which was said to have reasonable prospects of success. But is convenient at this stage to deal with a second application which is now also said to make the second refusal, on 14 August 2006, to delay eviction irrational and disproportionate.[46]The Claimant lodged her own planning application for permanent and alternatively temporary permission on the Rushall Road site on 6 August. The Council refused to delay eviction on 14 August by which time judicial review proceedings were already under way and the planned eviction had been stayed by Forbes J.[47]The letter from the Council Solicitor conveyed the provisional view of the Head of Planning Services that there was a 50/50 chance and therefore a realistic prospect of the application, or an appeal, leading to a grant of temporary permission. He thought that it was likely that the Council itself would again refuse permission. A decision by the Council would take about 2 months and an appeal a further 6. The period for laying out the site would be about 7 months, a total of 15 months, if there were no delay in lodging an appeal against refusal. Accordingly the question was whether it was reasonable to delay eviction for a minimum of over a year. This would lead to a cumulative delay of more than two and a half years from the Inspector’s decision, and four years from the start of the unlawful use. This would fly in the face of the Inspector’s clear conclusions. I shall have to return to what the Council said about racial discrimination, but the letter concluded that the planning process in relation to the Denton Road site had been exhausted, the human rights balance had been considered, and the balance of planning policy reappraised in the light of the new Circular. The risk to the promotion of good relations between different racial groups was no greater and could be less if the group had to leave Denton Road and camp by the roadside, than if it was allowed to stay. There would therefore be no delay in the eviction while the Rushall Road application went through the planning process.[48]In his witness statement, which preceded the application on Rushall Road, Mr Tomlinson said that the issue of residential amenities was finely balanced and not dissimilar to that at Denton Road; the residents were further away than at Denton Road but were elderly persons in sheltered housing. If an application were made and appealed after a refusal, the decision could go either way. He thought that the prospects for success on the Denton Road appeal were remote. Mr Brown, the Claimant’s planning consultant took the view that they were very good at Denton Road, many factors having changed in their favour, and excellent at Rushall Road.[49]Mr George also relied on a letter from the Council Solicitor dated 14 June 2006, in response to the Claimant’s letter before action, as showing an unlawful approach to the use of s178. The solicitor justified the decision not to postpone eviction action by reference to the various matters I have already set out, and described the approach as measured and exhaustive, taking the new Circular into account and human rights as well. There had been considerable pressure on the Council from both sides. He added:
“There was probably only one course of action which it could have followed were it not to have breached its duties to either the gypsies or the local residents or both – and that is the course which it has indeed followed. Even so the entire enforcement and appeal process will have taken nearly three years, from first unlawful occupation without planning permission in October 2003 to final expiry of the direction action notice in late July 2006.”
[50]This led to the assertion that the Council had wrongly thought it was under a statutory duty to take proceedings under s178. This was supported by the statement of Ms Forrer, a Senior Benefits Officer working in the Council’s Equalities Group, who had produced a draft race impact assessment of the proposed evictions in July 2006 in consultation with Mr Tomlinson. The brief description of the action being considered included “To comply with our statutory obligations (Town and Country Planning Acts) in a fair and reasonable manner…To secure compliance with the provisions of enforcement notices…..” Later it said “Action is not optional it is a statutory requirement.”; and “Planning inspection report (which led to the statutory requirement to take this action) deemed that whilst the Gypsy families had certain Human Rights, these were outweighed in this situation by the Human Rights of the settled community.”[51]I shall start by considering the submission that the Council misconstrued its powers under s178 and regarded itself as under a statutory obligation to take steps under it. Of course, if the Council had regarded itself as obliged by statute to take steps under that provision, it would have erred in law. The power is discretionary; other steps are open to it, notably prosecution and seeking an injunction under s187B. Indeed, taking no steps at all may sometimes be an option in some circumstances. I adopt what I said in O’Brien at paragraphs 174-182: the use of s178 is not necessarily proportionate, especially in a residential eviction case, simply because it is the swiftest and most effective remedy. Other factors must also be considered including the degree of harm done to the interests protected by planning control, the need for a swift remedy, the need to uphold planning control and the personal circumstances of those affected, paragraph 184 of O’Brien.[52]I do not accept that the Council misconstrued its powers and therefore ignored other remedies. It would be a somewhat improbable error anyway but the language it used has a factual context which explains it. The occupants’ use of this site had been considered at an enforcement appeal at which an extension of time had been granted, and later at a planning appeal, in the course of which that time had been further extended, in order to avoid the occupants being removed with nowhere to go. They had lost the appeal in terms which made very clear how the independent Inspector had appraised the various interests and the harm which they faced and did. The local authority had undertaken the work to find another site which the Inspector had strongly encouraged it to do. The occupation had become a criminal offence in November 2005. The period before eviction had been extended to July 2006.[53]What then happened, and it is clear from the decision in December 2005 to take direct action which is not under challenge here, is that the Council balanced the removal of the group against the extension of time, and took the view that at the expiry of that time, the notices had to be enforced or else the process of enforcement, appeal, and public respect for it would be set at naught. That is reflected in the language of Mr Tomlinson’s witness statement. By that time, the prime consideration for the Council had become effective enforcement. The language of the Council Solicitor’s letter of 14 June 2006 does not betray a misconstruction of the Act, but is born of a balancing of interests which now requires the notices effectively to be enforced. This is underlined by the reference to duties owed to gypsies and local residents; in a legal sense there are no such duties readily discernable from the Act. Rather, the solicitor is speaking of the duties owed more generally by a public body to act fairly to all those affected in the fulfilment of statutory functions. The decision may be flawed for other reasons but not because the Council thought it was under some stricter and more specific duty to deploy s178.[54]I do not regard it as appropriate to treat the language of the race impact assessment, not compiled by a lawyer and briefly expressing the background, as showing the flaw asserted in the Council’s thinking. Undoubtedly, its language is incorrect in law. But I do not attribute evidential value to this subsequent sidewind over the mainstream, which I regard as reasonably clear as to what the Council thought.[55]Next, I consider the contention that the Council did not consider the three material changes which are said to have occurred after the direct action notice. First, it is plain that all three are changes in circumstance which bear upon whether direct action or rather direct action on the timescale laid down was lawful. They needed to be considered in that context. That was not at issue.[56]Second, were these changes considered? The Council was obviously aware of the Inspector’s encouragement to it to find a site because of the action which it took in response. It is obvious that the Council was aware of the refusal of the three applications which it had made and indeed of the lack of success more generally which its search for alternative sites had yielded. The first letter under challenge, of 24 May 2006, refusing to delay eviction, was plainly written taking into account that these possibilities were no more and that eviction would lead to roadside camping or some other unauthorised site. The Council was not deluding itself about what would happen to this group. That remained the position at the time of the second refusal to delay eviction.[57]The Circular was specifically considered in the context of Denton Road in the report and decision on the Claimant’s application for temporary permission. The failure of the Council’s own applications was also fully known to the Committee which approached its decision on the Denton Road application under no illusion that there was another site which the group could move to. The Council decided not to extend the period before direct action was taken while a possible appeal was lodged as soon as it had refused the application. The Circular was seen as not making a sufficient difference to the lack of merits in the Denton Road site; it was not ignored. Nor was it ignored in the second decision under challenge.[58]As at 24 May 2006, the only relevant application the prospect of success in which could be considered was Denton Road, which had just been refused. There had been no time for a further appeal even to be considered by the applicants. Denton Road had already been to appeal recently and the Inspector had rejected even a temporary permission. She had also made very clear how she appraised the harm which the group was doing to the amenities of nearby residents, although she hoped that another site would turn up and expected the Council to bend its endeavours to find one. I see the refusal of an extension as partly reflecting an implicit view that an appeal on Denton Road would be tactical rather than meritorious. I think that the view of Mr Tomlinson as expressed in his witness statement that the appeal would have only remote prospects of success represents the view which he then genuinely held, although the letter of 24 May does not say as much. The proper inference is that the prospects of success were considered but were regarded as so low that they did not affect the decision.[59]The focus on this aspect of the challenge to the second decision was the prospect of success for the Claimant’s Rushall Road application. The Council accepted that the application had reasonable prospects of success although Mr Tomlinson, not surprisingly, regarded them as stronger on appeal and regarded it as unlikely that the Council itself would grant permission, no doubt bearing in mind the recent refusal of an identical application. The prospects of success were thus plainly considered. The suggestion that the prospects were discounted to nothing because they were seen as less than 50/50 before the Council is just wrong. The reason why that application did not lead to an extension of time was more the time which it would take for the decision and, if favourable to the applicant, its later implementation to provide a site for the group, in view of the time which the group had already had in breach of planning control. So I reject the contention that the relevant issues were ignored.[60]I also regard the contention that the decisions were irrational as untenable. The planning merits of the use of the Denton Road site had been considered by the Council twice and by the Inspector once. An extension of time for compliance had been considered by an Inspector and granted, and a further extension had been granted by the Council. After that extended period had expired and the continued use had become a criminal offence, a further period of occupation was allowed before the notified removal was to take effect. This was a use which was seen, in agreement with the Inspector, as seriously damaging to other people’s amenities. The Council had undertaken serious and genuine steps to find alternatives. The changes were considered. At the first date, there was only a possible appeal in respect of a site which an Inspector had ruled against recently, although there would have been some support from the Circular which was previously lacking. The view that the possible appeal had only remote prospects is a reasonable view as well, in the light of the previous decision of the Inspector so recently and firmly expressed. At the second date, there was a distinctly brighter prospect for the Rushall Road application but it was some way off. Mr George took issue with Mr Tomlinson’s assessment of the time its resolution and implementation would take. I was wholly unpersuaded that the view of Mr Tomlinson was unreasonable. No doubt sometimes the timetable can be shortened but equally it may be lengthened. The Council was entitled rationally to conclude that further delay would bring the system into disrepute and that the enforcement of the notices was required, hard though that would be for the occupants.[61]Mr George argues however that the decisions must also be proportionate because of the interference which removal would bring to the Article 8 rights of the Claimant and the group. That cannot be at issue. It is for the Court to reach its own view on whether the decisions were proportionate. The undoubted interference has to be justified as being in the pursuit of a legitimate object and no greater than is necessary to achieve that object. Planning control and its enforcement is a legitimate object. The issue is whether in all the circumstances, the removal of the group through the use of s178 would be proportionate.[62]But, for the reasons given in O’Brien, the task of a Court considering proportionality on judicial review is not the same as that which would fall upon the Court exercising the original jurisdiction under s187B. First, the Court is still reviewing the lawfulness of the decision; it is not taking a decision itself as to whether it would use s178 powers, nor is it asking whether it would grant an injunction. The review is undertaken with the degree of intensity appropriate to the fact that the interference with Article 8 rights would leave a group of people with children and who have particular needs, to camp by the roadside, or being moved on to other equally unsatisfactory locations. There is still scope for a discretionary area of judgment to be accorded not just to planners on areas of planning evaluation which the Court is less well placed to judge, but also to the views of those who have local responsibilities, know their area and have had to consider the issues, including the need for effective enforcement, with the expertise and experience which they have. The Court does not have full merits appeal before it. Second, as the question of the proportionality arises in the context of ECHR rights, it seems to me following R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2006] 2 WLR, paragraph 30, and Wilson v First County Trust Ltd (No2) [2004]1 AC 816, that the Court has to consider the proportionality of the decisions in the light of present circumstances.[63]In reaching my views on proportionality, I first do so without reference to the September grant of permission for the Rushall Road site, in effect taking the position as at the time of the second decision and the date of the hearing. I shall then consider the position now. I adopt what I said in O’Brien, paragraphs 141-150, about the way in which the substance and procedures of the planning system mean that the decisions which emerge are usually proportionate where they interfere with an individual’s human rights. Likewise I adopt what I said in paragraphs 152-155 about the need for the criminal law effectively to be enforced and the great and even decisive weight which can properly be given to that factor. The proper enforcement of the criminal law may mean that gypsies are forced off land which they own, without an alternative site to go to.[64]The group appealed against the notices and enjoyed partial success in obtaining an extension of time. They applied for permission, and appealed the refusal and time was further extended. They lost the appeal and although criticisms were made of the Inspector’s evaluation of issues before me, there was no further appeal. The difficulties of the group were recognised and notable endeavours made to find accommodation for them. They were given some 7 months’ notice of the intended removal date and that removal would not have occurred until some 8 months had passed with them occupying the site in breach of the criminal law. Were gypsies able to take advantage of decisions in which they were successful, perhaps having relied upon exceptional policies to some disadvantage to others, but also able to defy decisions where the rights of others or other public interests outweighed theirs, the planning system and the law would be brought into disrepute.[65]I entirely accept that there were no other means which would have been effective to bring about compliance in this case, and none has been suggested. It has not been suggested that a fine would cause the group to leave voluntarily nor has the seeking of an injunction been suggested because they would leave under the threat of committal; rather it would afford an opportunity to argue that it should not be granted, and later that any breach should be met with only a suspended committal order.[66]So far as alternative sites are concerned, as at 24 May 2006, there was only the Denton Road repeat application, which had been refused. I accept that there have been changes which would help the Claimant in an appeal. These arise from the changes which the Circular brings which would help the argument for a temporary permission, and the fact that an application for a temporary permission reduces the range of arguments to be pursued against its grant, as the report demonstrates. There is scope for a different Inspector to take a different view about the competing rights of the residents and the group. The basis for the degree of interference with residents’ Article 8 or Article 1 Protocol 1 rights which the Inspector found is unclear, but I would be reluctant to express a view with the information before me about how their rights were affected or even engaged.I assess Denton Road appeal prospects as higher than remote, but not more than reasonably arguable. An Inspector would normally seek clear changes of circumstance before reaching a different conclusion from another recent decision, and a temporary permission had already been rejected. But this does no more than mean that I give some greater weight to the prospects of eventual success on the Denton Road site. There would have been delay for about 6 months while an appeal with at best modest prospects was heard.[67]I regard Mr Tomlinson’s appraisal as at 14 August 2006 of the Rushall Road site’s then prospects as entirely reasonable. Although Mr Brown is more optimistic, and right as it turns out, I would have accepted Mr Tomlinson’s view. I see no reason to disagree with Mr Tomlinson’s estimate on laying out the site; of course it could be quicker but it could be slower too. I do not think that the further delay in taking effective enforcement action would have been warranted by that application.[68]Accordingly, had matters been decided as at the date of 14 August or at the date of the hearing, I would have dismissed this application. The yet further delay while distinctly uncertain or improbable alternatives wended their way through the planning process, would have persuaded me that the greater weight was to be given and was properly given by the Council to the effective enforcement of the criminal law.[69]But I have to assess matters now. I received further brief submissions following the grant of the Rushall Road permission to which the Claimant drew my attention. The Council wrote to the Claimant on 4 October and to me on 16 October 2006. The four points raised were: the attitude of the Claimant and the group to moving on to the Rushall Road site as second best in their view, the ending of the existing tenancy there, the laying out of the site in accordance with the planning permission and the threat of a challenge to the permission by way of judicial review by a local action group. These reinforced the realism of the timetable envisaged by Mr Tomlinson. A formal decision on the grant of a tenancy to the Denton Road group had yet to be made but was likely, subject to terms being agreed. The position of an eviction would be reconsidered in the light of the judgment in this case.[70]The Claimant took the view that the present proceedings had become academic in view of the progress made. The grant of permission supported the assessment of its prospects which she had put forward, the taking of direct action would be reconsidered by the Council, (but I note that would only be done after receipt of the judgment so it could not be academic) and there was no further detail as to the harm to residents which they submitted as before fell below that necessary to interfere with their human rights.[71]I do not think that the now shorter time before the Denton Road appeal is decided is itself a significant factor, particularly as its prospects of success are in my view diminished by the grant on Rushall Road. The grant on Rushall Road is however important. The site is intended for the group, and I have seen nothing to suggest that the group would not move there if they were refused permission on appeal on the Denton Road site. I have seen nothing to suggest that a judicial review application is being furthered or has any basis for success, though it could inhibit the start of work if the site were available. The physical works of laying out the site may take some months but I see no reason to take a period longer than that given by Mr Tomlinson, of some 7 months from the start of works. However, the Council may be unwilling to start work if the group is unwilling to commit itself to the site until after the Denton Road appeal. That would delay the start of works. The Council is also uncertain about when works could start because of the agricultural tenancy which needs to be terminated and an early termination might cost it money which it is unwilling to expend if the group is not committed to the site. A number of these imponderables, particularly the effect of the Denton Road appeal, will be resolved within a few months. But that means that the range of time before the site is ready for occupation could be as long as 18 to 20 months or so, and not less than 10 months if the group wants to await the outcome of the Denton Road appeal. But in a real sense the problem is one of the Council’s own creation because the time would have been shortened if it had granted permission for the site on the SHS application.[72]As I understand matters, the Council wishes to consider the question of eviction in the light of the circumstances now prevailing and in the light of what is said in this judgment. That means that it will have to issue a fresh decision, with a fresh period of notice if it decides to maintain its current stance. There are some imponderables as I have outlined above which the Council as the responsible authority should be able to consider. It might wish to consider whether any period of delay should be conditional upon the group’s commitment to the site so that negotiations on termination of the tenancy can be begun or at least greater clarity obtained over the stance of the tenant. And I have received quite limited information about how the parties approach this new situation; I am not sure that the Claimant has engaged with the points properly made by the Council.[73]I decline to express the view which I have provisionally formed about what would be proportionate or not in these circumstances, other than to say first that it would not be lawful for the previous decisions simply to be adhered to without a full and up to date consideration in the light of the Rushall Road permission, and second that there are in my judgment perfectly plausible combinations of circumstance here which would mean that the use of s178 was not disproportionate.

Race Relations Act

[74]Mr George’s third contention was that the Council had failed to have regard to the duty imposed on it by s71 Race Relations Act, as amended by the Race Relations (Amendment) Act 2000. The fulfilment of the duty required it have regard to a Code of Practice, and so to assess the impact of its eviction decision, broadly speaking, on race relations, racial equality and equality of opportunity. This, the Council had failed to do.[75]S71(1) as amended provides: “Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need-”(a) to eliminate unlawful racial discrimination; and(b) to promote equality of opportunity and good relations between persons of different racial groups.[76]It applies to planning authorities. S71 requires due regard to be given to those specified needs when a statutory function is being exercised; R (Elias) v Secretary of State for Defence [2005] EWHC 1435 Admin, and [2006] EWCA Civ 1293. The need to promote good race relations is referred to in Circular 1/06.[77]S71C empowers the Commission for Racial Equality to issue codes of practice; it has issued one on the “Duty to Promote Race Equality”. S71C(11) requires a court which is considering any question in proceedings to which the Code is relevant to take it into account in answering the question.[78]The Code described the duty in s71 as aimed at making the promotion of race equality central to the way public authorities work, although most should be able to use their existing arrangements to meet the duty. The general duty meant that local authorities, for example in enforcement work, were expected to assess whether race equality was relevant to the function, and if so, they should then do everything to meet the general duty. The weight given to the duty should be proportionate to its relevance to a particular function; particular policies might affect different racial groups differently and authorities should consider that point and whether the policy promoted good race relations. It advised that in order to meet the general duty, authorities should identify which policies or functions were relevant to the duty in priority order, assess how they were being carried out against the three part obligation in s71 and what changes were necessary to meet the duty. That assessment could involve asking whether the policy or the way it was carried out had an adverse effect on race equality or on race relations, and if so whether that could be avoided or reduced. The considerations affecting gypsies as an ethnic minority, partly in a planning context, are discussed in a recent CRE Report.[79]Mr George submitted that the duty in s71 arose here because there were a number of ways in which the decision to remove the group using s178 affected discrimination, race relations and equality of opportunity: their removal would affect their ability to access essential services, resort to unauthorised sites would generate conflict with the settled population in the vicinity, steps could be taken to minimise those consequences, eviction could not promote racial equality. These aspects, he submitted, had not been considered at all in the 24 May 2006 decision, and although some were considered in the 14 August decision, due regard had not been paid to the promotion of equality of opportunity. Once the issues to which the duty in s71 give rise had been duly considered, action should be tailored to it, although no particular outcome would be dictated. Mr George’s submissions also attacked the December 2005 decision, but no such challenge is part of these proceedings. I accept however that an absence of reference to the duty at that time cannot provide the support now which positive references might have done.[80]Mr Bird for the Council relied on the way in which matters were considered through the planning process. First, the very provisions of its planning policy HOU23 were a product in part of the s71 duty, as originally enacted. This was, to use the language of s71 as originally enacted, an “appropriate arrangement with a view to securing that their relevant functions” were carried out with due regard to the specified needs. This policy, whatever criticisms may be levelled at its efficacy, provides for exceptions in respect of gypsy sites to the normal policy that residential caravan sites should be assessed as if they were permanent dwellings. If certain criteria for site location are met, they could be permitted as exceptions to policies which would otherwise require such development to be confined to recognised development boundaries. The policy recognised that gypsies had their own needs, born of their cultural and racial identity; the policy exceptions balanced their needs with the needs of others.[81]The consideration given by the Inspector to the position of the individual members of the group and the difficulties which they would face in finding alternative sites, balanced against the impact which their use of Denton Road had on the settled community nearby, in fact represented the consideration of the needs specified in s71. These were all considered as material considerations. Subsequently the Council, recognising the difficulties facing the group, and in order to respect them as an ethnic group, had sought to find an alternative site for them. Their human rights were considered afresh with updated information before the May decision.[82]In the consideration of the Strategic Housing Services’ three applications on 14 December 2005, which arose from the rejection of the group’s appeal by the Inspector, the officer’s report had been introduced with a general discussion of the exceptions policy in HOU 23, the then Circular 1/94 which referred to the particular needs of gypsies and the potential for conflict with the settled community. The Human Rights Act was noted, including Article 14 and the lawfulness of positive discrimination of which an example was planning policies making exceptions for gypsies. Various objections of a more stereotypical nature which residents had raised were dealt with. Strategic Housing Services on 7 December 2005 prepared for members a statement on the context of the applications and on the misconceived and stereotypical objections which members of the public had put forward, in order to prepare members for the meeting. S71 was specifically referred to as a legal duty and HOU23 as a concrete example of its application. The Council’s own policy for gypsies referred to the need for equality of opportunity and the effect which unauthorised camps had on conflict with the settled community.[83]When the application for a temporary permission at Denton Road was considered in May 2006, before the first decision now challenged, the officer’s report repeated much of the general material which I have already referred to. Mr George submits that it did not amount to a full explanation of the extent of the duty in s71. At best it was merely taking account of factors relating to the duty.[84]In July 2006, the Council Audit Committee considered a report on strategic risks, one of which was the real threat to social cohesion created by the hostility of intolerant residents to applications for gypsy sites, which the steps taken to maintain order at Council meetings could not eliminate. Another probable and significant risk was that the enforcement action against the Denton Road group would lead to a repetition of the enforcement cycle in respect of another site. The duty in s71 was not expressly covered.[85]Also in July 2006, so after the first decision and before the second decision under challenge, the Council through Ms Forrer carried out a race impact assessment of the impact of taking the intended direct enforcement action. The Council adopted it in mid July. This action was not seen as discriminatory because the Council would take action against any reported breach of planning policy. There had been an extension of the deadline for enforcement together with the 2005 site search exercise, leading to the submission of the three planning applications. Action and inaction could have equally adverse effect on community relations. There were a variety of measures in train and existing for improving access by gypsies to Council services. No race relations related complaints had been received. As I have already said, the value of this assessment was challenged by Mr George because of its apparent assumption that there was an obligation to remove the group. He also said that it failed to consider whether any lesser step could minimise the potential for conflict.[86]In the letter of 14 August 2006 conveying the second decision, the Council dealt explicitly with s71. It repeated that planning policy for gypsies discriminated positively in their favour, because their way of life was part of their ethnic identity. It was part also of the consideration of their human rights. The letter continued that the balance of interests had been reconsidered and that it would promote equality of opportunity and good relations if the direct enforcement action proceeded. The risk to that objective, if roadside camping was the alternative, was no greater and might be less than if the Denton Road site continued to be occupied. This, said Mr George, failed to consider what lesser steps could be taken and what impact removal would have on access to essential services. All these matters, submitted Mr Bird, had been exhaustively considered over some time by the Council, which had done what it could to minimise the impact of removal on the group.[87]I do not accept the submission made by Mr Bird that s71 was concerned with outcomes; ultimately of course it is aimed at affecting the way in which bodies act. But it does so through the requirement that a process of consideration, a thought process, be undertaken at the time when decisions which could have an impact on racial grounds or on race relations, to put it broadly, are being taken. That process should cover the three aspects identified in the section. However, that process can be carried out without the section being referred to provided that the aspects to which it is addressed are considered, and due regard is paid to them. That latter requirement cannot be met, and it was not suggested that it could be, merely by considering the point and then according it no weight, because weight was a matter for the discretion of the decision –maker.[88]Mr Bird is right to say that the question of eliminating unlawful discrimination and promoting equality of opportunity were considered through the planning process. It may not always be the case that a particular statutory regime gives an adequate opportunity for the s71 factors properly to be considered in the absence of an express analysis for those purposes, but in this instance it does. The positively discriminatory treatment which gypsies receive in the planning policy framework applied not just in HOU23 but in the two Circulars was plainly considered and the lawfulness of it dealt with and accepted. Indeed, one purpose of that is to promote equality of opportunity, including access to services of health and education, for those who travel and wish to maintain a lifestyle in which their aversion to bricks and mortar is respected. I have set out above how that theme was present in the Inspector’s decision letter, in the consideration of the three applications in December 2005 and again in the Denton Road application in May 2006. The specific impacts on access to services for this group were considered at each stage, including the May 2006 decision which was based on updated human rights information. Their education and health concerns were included under that head. As Mr George acknowledged, the consideration of those matters and the disadvantage which this group would experience did not dictate any outcome in their favour. These issues also received specific consideration under the Race Relations Act rubric in the December 2005 meeting because that was part of the reasoning behind the representations made by the Strategic Housing Service as nominal applicant. They were also considered in the August letter under that rubric. I see no reason to require in this case that the considerations be set out at length under a new heading when they had been considered already and were obvious.[89]There is nothing in the argument that the Council failed to consider lesser steps than removal, which a consideration of s71 specifically might have brought forward. The Council considered whether an injunction or a fine would have any effect on the proper objective of preventing the group continuing to breach the criminal law. It gave extensions of time both before and after the enforcement notices took effect, aware that if they were enforced without an alternative site being available, the group would be site less and would probably camp by the road side. The Race Relations Act brings forward no additional factors and the planning decision-making framework obligated, and the decisions here gave, careful consideration to the group’s ethnic and cultural needs and difficulties. There are no other realistic lesser measures to be contemplated in view of the lawful view which the Council had formed about the need to enforce the planning law effectively.[90]The asserted misdirection as to the legal obligation to take steps under s178 has already been dealt with. But in this context, the question is whether the justification for action was overstated. It may have been expressed ineptly for a lawyer, but the view was taken that the effective enforcement of the planning system was an imperative. It is clear that the Council was legitimately concerned about the consequences of a failure to enforce the criminal law, to which gypsies are as subject as anyone else. The concern was that that would bring the planning system into disrepute, and in this context could worsen race relations as the settled community might well conclude that that the gypsies were doubly favoured, taking the benefit of decisions which went their way after the application of a favourable policy but being left to break the law which applied to everyone if the decisions went against them. Enforcing the law against them in the most effective way, in the circumstances of this case, could not rationally be regarded as a failure to promote equality of opportunity for this racial group.[91]The impact of taking this action on promoting good race relations was not explicitly considered in the May decision. It was considered in the August decision but it is clear that the substance of those factors was not considered for the first time then. By the time of the May decision, the Denton Road application had been refused. The degree of conflict between the use of the site and residents’ rights and amenities had been considered in the Inspector’s decision and again in May. This had been part of the thinking behind the December 2005 decision to take action under s178. Any lack of awareness of the potential for favourable treatment to create hostility had been driven away in December 2005. I do not think that the July 2006 race relations assessment or the risk assessment was telling the Council of impacts which it was not aware of. They reflect or repeat in my judgment that which the Council had already considered. It is clear that inaction would not promote good race relations on the Denton Road site. Mr Tomlinson’s witness statement referred to the outrage that the 7 month delay before removing the gypsies had created among local residents. The law had required the group to go. The potential impact on race relations of unauthorised camping elsewhere is essentially part of the impact which removal with no alternative site can bring because of the obvious and known potential for conflict with the settled community. The point is essentially included within the wider adverse impact which removal could have; it is not just an adverse impact on the group but a potential adverse impact on other interests and people. But this was a known risk and indeed is obvious.[92]If I am wrong in that assessment, I would not quash the May decision on that score because the August decision would still be operative and shows what the Council would have concluded and would still conclude on that issue.

Conclusion

[93]Accordingly, the grounds for quashing the decisions all fail. However, the change in circumstances brought about by the grant of permission for Rushall Road requires the Council to consider again whether it wishes to take action under s178 and if so on what timescale and in what circumstances. It cannot now rely on the decisions which it had previously made because there are new material considerations which it must weigh in the light of all the circumstances before taking such action.[94]I will hear from Counsel as to the terms of the Order unless there is agreement in writing.

Cited in 7 later judgments