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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Butler, R (on the application of) v Wychavon District Council [2006] EWHC 2977 (Admin) (10 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2977.html Cite as: [2006] EWHC 2977 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		10 November 2006

1. MR JUSTICE COLLINS: This is a difficult case -- indeed, a difficult issue -- because the claimant is a gypsy and she and her husband have undoubtedly had enormous problems in finding anywhere where they can position the caravan in which they wish to live. They have the antipathy that Romany gypsies have to bricks and mortar, and there is no question but that this is a genuine case in that respect. They have found it impossible, they say, to find anywhere to live in the area in which they were born, namely Worcestershire, and in particular in the area which is covered by the Wychavon District Council.
2. They found a plot of land which they thought was suitable, and indeed the owner before they bought it had constructed some hardstanding and had proposed that it should be used (and had started to use it) as a base for positioning a caravan. The site itself is in the Green Belt, and in April 2004 the Council issued two enforcement notices in relation to it. The enforcement notices dealt respectively with the development involved in the construction of the hardstanding and other associated works, and the change of use to siting a caravan or mobile home. They required that the works that were in the process of being carried out at the time the enforcement notice was served be brought to an end, that the hardstanding and what had been constructed be removed, that the change of use cease and the caravan be removed from the land.
3. There was an appeal against that enforcement notice, but for whatever reason the appeal was not pursued, and so the enforcement notices stood. The owner decided that he would dispose of the land, and in August 2005 steps were taken by the claimant's husband to purchase it and the purchase was concluded on 21 October 2005. They used solicitors, but say that those solicitors failed to ascertain that the enforcement notices existed. There is no question but that they were properly registered and that any solicitor who dealt with conveyancing who was in the least competent ought to have discovered their existence. However, it was not until December or thereabouts that they discovered that the enforcement notices existed. Indeed, their present solicitors who had not been involved in the conveyancing discovered that that was the position on 30 November 2005.
4. The Butlers had not moved on to the site at that point. They were in fact living on a roadside somewhere in the county, and they were of course vulnerable to being required to move on. Indeed, that had been the pattern under which they had existed for some time.
5. On 19 December, there was submitted on their behalf a planning application to obtain permission to use the site as a place where they could station their mobile home and begin to live. They, together with their children, moved there on that day. The reason they did that was because, sadly, one of their children suffers from asthma, and living on a cold roadside without any facilities was not doing him any good at all. So it was that they decided that the time had come when they needed to move on to the site. By then they were well aware that it was contrary to the enforcement notices, in particular the notice which forbade the change of use to the stationing of the mobile home, and in those circumstances they undoubtedly took the risk of the breach that then existed.
6. The application was considered by the Council on 16 February 2006. The officer's report to the Committee dealt with the history of the site and pointed out, as was clearly the case, that it was within the Green Belt and so the policies relating to development in the Green Belt applied. That meant that unless there were very special circumstances, development would not be permitted. What was said in the officer's report in that connection was this:

"Your officer's view is that the proposed development does not comply with those policies [that is the various policies which had been referred to]. The site is within the Green Belt, where there is a presumption against new development. The site is essentially rural in character and the proposed development would be extremely harmful to this character. The mobile home and touring caravan would be alien intrusive features, clearly visible from outside the site."

7. Then there was reference to the personal circumstances of the claimant and her family -- the matters to which I have briefly referred. There was, in addition, reference made to Article 8 of the Human Rights Convention, and the officer's report pointed out that there must not be an interference with the exercise of the right to respect for private and family life except where it was in accordance with the law and was necessary for the protection of the rights and freedoms of others. What was said was this:

"The proposed development unacceptably affects the visual amenities of the area. This is a Green Belt location in the open countryside that the planning system seeks to protect in the public interest. The Local Planning Authority does not consider that the personal circumstances of the applicants that have been submitted with this application demonstrate a need so exceptional as to override this harm to the landscape. It is therefore considered that the subsequent interference with their private and family life is necessary in this instance to protect the rights and freedoms of others to enjoy an unspoilt countryside and to safeguard the Green Belt."

8. The expression used in the relevant paragraph of the guidance is that inappropriate development should not be approved in the Green Belt "except in very special circumstances". Those words have to be given their ordinary and natural meaning.
9. It is important to note that one of the matters put forward for justifying a refusal of planning permission in the circumstances of this case was that it would be truly harmful to the openness and appearance of the Green Belt at this particular location. This was not a situation, which sometimes applies, where, although the proposed development is in Green Belt land, it in fact can be concealed or screened by trees or whatever, and is not so obviously visible as to have an immediate impact upon the Green Belt in the location in question. That does not appear to be the situation in this case. There was clear advice that it was harmful to the openness, character and appearance of the Green Belt at this location.
10. There was an addendum to the officer's report, and this Mr Watkinson particularly draws attention to in the context of the submission that he makes. That reads:

"Since the report to Committee was prepared, the Government has on the 2.2.06 published a new Circular 1/06 - Planning for Gypsy and Traveller Caravan Sites. Whilst this Circular may have implications in the future for other sites, it is not considered to be of any great significance for this site which is in the Green Belt. The Circular makes it clear that the presumption against inappropriate development in the Green Belt continues."

11. That, so far as it goes, is undoubtedly correct. The Circular in question deals with the Green Belt and makes it clear that the Green Belt policies will still apply notwithstanding the change of emphasis that the Circular produces. That change of emphasis is a recognition that, as things stood at the beginning of 2006 and still to a large extent remain, there are insufficient sites which have been made available for gypsies to live. Indeed, the problems faced by the claimant and her family in this case are by no means unique. They exist over considerable parts of the country. They have led to gypsies setting up sites in contravention of planning control and the opposition from neighbours, which has led to ill-feeling in some cases, and it has also led to a number of applications to this court and indeed to the county court where possession proceedings have been taken. It is submitted that to evict gypsies in the circumstances of the absence of sufficient suitable sites is to breach their human rights and therefore should cease. There have been a number of applications for planning permission which have gone on appeal to inspectors, and sometimes inspectors have granted (usually temporary) permissions, even though persuaded that the particular site is one which would not normally be given planning permission.
12. In relation to the Green Belt, paragraph 49 of the guidance says this:

"49. There is a general presumption against inappropriate development within Green Belts.

New gypsy and traveller sites in the Green Belt are normally inappropriate development, as defined in Planning Policy Guidance 2: 'Green Belts' (PPG2). National planning policy on Green Belts applies equally to applications for planning permission from gypsies and travellers, and the settled population. Alternatives should be explored before Green Belt locations are considered. Pressure for development of sites on Green Belt land can usually be avoided if the local planning authority allocates sufficient sites elsewhere in its area, in its LDF, to meet identified need. Criteria-based policies in DPDs for the location of gypsy and traveller sites (see paragraphs 31 and 32 above) should not depart from national planning policy as set out in PPG2.

50. The presence of Green Belt will constrain and limit opportunities for identifying gypsy and traveller sites in some areas. The general extent of the Green Belt should be addressed through the RSS in the first instance. PPG2 makes clear that once the general extent of Green Belt has been approved, and once detailed Green Belt boundaries have been established in adopted development plans, they should only be altered exceptionally."

13. The guidance is to a considerable extent looking to the new arrangements under the 2004 Act, whereby development plans have to be produced for the relevant areas. The problem of finding sites for gypsies has been addressed in the Circular by insisting that more sites than there are at present should be allocated in the proposals for the new plans that have to be adopted. Nonetheless, it is still clearly relevant to individual applications for planning permission which are before the planning authority. But it is important to note that the Green Belt policies still should be obeyed. There are some areas where, outside urban areas, effectively there is nothing but Green Belt. That creates a real difficulty for any gypsy who wishes to live in that area. It may be that, in certain circumstances, there really is nowhere else outside Green Belt that can be discovered. In Wychavon I am told the Green Belt takes up about 13.5 per cent of the area. It is therefore clear that there are potentially available some sites which could be used for gypsies to station their mobile homes. The problem of course is that, as we all know, there tends to be opposition to any such development by those who live nearby. There is, undoubtedly I fear, a degree of discrimination and prejudice against gypsies which they all suffer from time to time. That again leads to these problems.
14. It is important to note that Wychavon is not an area where Green Belt forms even the majority of the possibly available land where such sites could exist. But what the guidance does refer to is the possibility of temporary permissions. In paragraph 45 this is said:

"Advice on the use of temporary permissions is contained in paragraphs 108 – 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need local planning authorities should give consideration to granting a temporary permission."

15. Mr Watkinson submits that that is a new approach, and it means that the officer's view, expressed in the addendum to the report, that the Circular had no great significance for the site in respect of which the application was made, but might have significant implications for future, was wrong. The Committee, he submits, ought in the circumstances to have considered the possibility of temporary planning permission. The difficulty with that submission is that the application was for a permanent site. They owned the land. It was not a question of siting the mobile home on land which was to be used for that purpose for a short time. It is not perhaps surprising that at that stage the Committee did not think in terms of temporary permission. In any event, it would be necessary to justify temporary permission by deciding that the damage to the Green Belt by the development in question was, at least for a time, acceptable -- or perhaps I should say, not unacceptable. Of course, there would be some damage by the mere fact of development in the Green Belt contrary to the policies, but, as I have already said, there is some development in Green Belt which can be said to have a less damaging impact than others.
16. It is clear that the view was taken that this particular development had a seriously damaging impact. Mr Watkinson has referred me to a recent decision of an inspector in which temporary permission was granted. But it is to be noted in that case that the inspector clearly took the view that that particular development was one which did not create real damage to the Green Belt because of where it was and how it was able to be hidden from view, albeit of course it was in breach of the Green Belt policies.
17. Following the rejection of the planning permission (and I am told in fact that there is an appeal pending which is due to be heard in January), the claimant's solicitors wrote a number of letters to the Council. In the letter of 9 March of this year, they set out matters which they submitted should persuade the Council to change its view -- matters that ought to be taken into account in deciding what should be done.
18. Incidentally, I should add that at the 16 February meeting, the Committee decided, as they put it, to reaffirm the decision to prosecute for the failures to comply with the enforcement notices, and the claimants were informed that those prosecutions would be instituted if they did not leave the land by 17 March. Effectively, they were given a month to remove the mobile homes from the land and to cease the breach of the enforcement notices.
19. In the letter of 9 March, the claimant's solicitors set out the personal circumstances and the hardships that had been, and would be, caused to the claimants if they were put back into the situation of having nowhere to site their mobile home and had to rely on temporary stays by the roadside or wherever they could find somewhere, where they could position themselves for a short time. It is obvious that that would have a damaging effect not only upon them, but also upon their children -- difficulties with the children's education and problems in relation to the children's health. But in that letter, they also drew particular attention to the new Circular 1/06, and they stated that, in the circumstances and in the light of that, the Council had to consider the needs of gypsy site provision where there was a high proportion of Green Belt land, and consider allocating appropriate Green Belt land if necessary. They submitted that the land in question was one such site that could be, in the circumstances, allocated. They also referred to the possibility of temporary permission, which should be granted if the Committee were minded not to grant full planning permission.
20. The correspondence -- that was not the whole of it -- was put before the Committee in order that there should be a reconsideration. There was a letter by the head of legal services of the Council written on 9 March, which was the day on which the matter was dealt with by the Committee. This stated:

"I confirm that your latest correspondence will be put before the Development Control Committee at today's meeting. However, it would be helpful if you could in any event clarify (1) the date when your clients moved on to [the site] and (2) the locations of the sites where they had been previously living and from which they say they had been evicted by the police. This aspect of your letter is very puzzling because there have been no recent evictions of gypsies by the police in Worcestershire."

21. The meeting was held. The decision was reached that the decision made on 16 February should be confirmed. The minutes of that meeting record as follows:

"The Committee had been circulated with a note from the Head of Legal and Support Services dated 9 March 2006 giving a resume of this matter, attaching correspondence from and to South West Law [the claimant's solicitors] (and other papers) and seeking the Committee's decision on whether the prosecution of Mr and Mrs Butler should proceed or if it should be held in abeyance until a decision has been taken on the planning appeal. The head of legal and support services informed the Committee that they needed to consider whether or not it was in the public interest to bring a prosecution at this stage, having regard to the latest correspondence and other relevant considerations. The Committee had regard to Mr and Mrs Butler's personal circumstances, but were also mindful that this site was in the Green Belt and that it was already subject to enforcement notices when they moved on in December 2005. Other gypsy families had already been forced to move off in 2004 because of these Notices."

22. That last sentence is attacked by Mr Watkinson on the basis that the situation in 2004 was rather different because the Circular 1/06 was not then in existence, and therefore it was not comparing like with like. If and to the extent that that last sentence indicates that there ought to be a consistency (as indeed there ought) in enforcement control, it was referring to a matter which was not a relevant consideration because of the change of approach.
23. The challenge is, as I have said, to the decision to prosecute. That a decision to prosecute can be the subject of judicial review is clear. There is jurisdiction. But it is a jurisdiction that is to be very sparingly exercised. In R v Inland Revenue Commissioners ex parte Mead [1993] 1 All ER 773, the approach to such a claim for judicial review was considered by the Divisional Court, consisting of Stuart-Smith LJ and Popplewell LJ. As the title suggests, it was concerned with a decision by the Revenue to prosecute. The argument was, putting it very broadly, that the decision to prosecute Mr Mead and the others who were making the claim was unfair because there had been a decision not to prosecute others who had been, it was said, in the same situation, and there ought to be a consistency in deciding who should be prosecuted. One of the arguments raised by the Commissioners was that there was no jurisdiction to review a decision to prosecute an adult. There was a previous authority, in which the Divisional Court had decided that it was possible to review a decision to prosecute a juvenile, but the argument was that there were special rules relating to juveniles, and if a prosecuting authority failed to have regard to those special rules, then the decision was open to challenge.
24. The case involving the juvenile was R v Chief Constable of Kent ex parte L [1993] 1 All ER 756. In that case, Watkins LJ had made it clear that the decision to review a discretion to continue a prosecution should be confined to very narrow limits. Juveniles, he said, and the policy with regard to them "are, in my view, in a special position".
25. At page 782 of the report in Mead, at letter C, Stuart-Smith LJ said this:

"It may be that in those last words Watkins LJ had in mind the distinction Mr Moses [who was arguing on behalf of the Commissioners] seeks to make. And naturally he relies strongly on the expression of opinion there set out. But in my judgment the distinction is only a reason why it is even more unlikely in the case of an adult that a successful application for judicial review could be made. The existence of the policy in relation to juveniles is at least a yardstick against which a decision could be tested. There is no such policy in the case of adults. It does not in my judgment affect the principle that a decision to prosecute by the prosecuting authority is in theory susceptible to judicial review, albeit the circumstances in which such jurisdiction could be successfully invoked would be rare in the extreme."

He then goes on to note that examples might be fraud or corruption.

26. It is of course open to the magistrates, if a prosecution is proceeded with, to entertain and to deal with arguments that to continue the case would be an abuse of the process for whatever reason, and it would be incumbent upon them, if the argument is raised, to consider whether a conviction -- or indeed a pursuit of the prosecution -- would amount to a breach of the human rights of the defendant, in particular in the context of a case such as this, a breach of rights under Article 8 of the Convention. Indeed, the magistrates would be bound to consider such an argument if it were raised, because as a public body they have an obligation not to breach an individual defendant's human rights. If they get it wrong, there is a right of appeal on fact to the Crown Court, on law to the Divisional Court. So there is full protection to the individual who is prosecuted, enabling him to raise issues such as this.
27. It is also important to note that the magistrates do have a discretion in relation to penalty, and even if they are persuaded that it is not an abuse to continue to prosecute, and the mere fact of prosecution would not breach Article 8, it is open to them in a given case to decide that the penalty to be imposed should be merely nominal. That will of course depend upon the circumstances of an individual case. But that gives an added protection to the individual who faces a prosecution.
28. These prosecutions are brought under the powers given by section 179 of the Town and Country Planning Act 1990. That, so far as material, provides as follows:

"(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence."

(3) provides for a defence if he shows he did everything he could be expected to do to secure compliance. Then there are provisions as to the mechanics and as to whether there can be prosecutions following prosecutions if, after the first, breach of the enforcement notice does not cease. The penalty is dealt with in sub-section (8), which provides:

"(8) A person guilty of an offence under this Article shall be liable-

(a) on summary conviction, to a fine not exceeding £20,000;

(b) on conviction on indictment, to a fine."

29. There is no provision for imprisonment. The only penalty is a financial one. The court has by sub-section (9) to have particular regard to any financial benefit which is accrued or appears likely to accrue to the defendant in consequence of the offence. Of course, as Mr Watkinson points out, although imprisonment is not a penalty, if there is a failure to pay a fine, then there is always the prospect of imprisonment. But, in any event, the possibility of proceedings following proceedings and fines of substantial amounts resulting is in itself a serious deterrent, as indeed it clearly is intended to be.
30. So far as what should be considered by the authority in deciding whether or not to prosecute, there is some assistance in the decision of Ouseley J in R(O'Brien) V Basildon District Council [2006] EWHC 1346 (Admin). In that case, he did not have to consider the question of what should be taken into account in prosecuting, or what might be able to be relied on as showing that a decision to prosecute was erroneous in law. He did say this in paragraphs 174 and 175 of his judgment:

"174. 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."

31. That reflects the approach that is, on the authorities that I have already referred to, to be taken to whether the court would grant relief in respect of a decision to prosecute. It is made as clear as it can be that such a claim needs truly exceptional circumstances to have any chance of success. The exceptional circumstances here are said to be the impossibility for the claimants of finding any alternative site, and the existence of Circular 1/06, which it is said significantly alters the planning regime in the area in question, or indeed all over country.
32. As I have already noted, the Committee clearly took the view here that this was an unacceptable development where it was. There is no question that the Green Belt policies are applicable, and however there may have been a change, it is clear that that, in the view of the Committee, did not justify a grant of planning permission on this particular site. Accordingly, it was appropriate, if the breach did not cease within the period granted, namely one month, to prosecute. It seems to me that it is quite impossible to suggest that that amounts to a failure to have regard to a relevant consideration, or otherwise is challengeable on judicial review grounds. I am prepared to accept, indeed it is clear, that this being a case where the Human Rights Convention is in play, that one is concerned with proportionality rather than with irrationality. If it can be shown that the decision to prosecute was disproportionate, having regard to the Article 8 considerations, then that would be a proper basis for stopping it going ahead. It is important in this case to note again that the claimants, albeit they say they were not aware at the time they bought the land, came to a site which already had the prohibition against the use they wanted to make of it. Whether or not their solicitor's incompetence led them to purchase the site seems to me to be irrelevant to the principle, and that is that they are deemed to have the necessary knowledge -- and indeed they had the necessary knowledge, as we know, from the end of November -- that this was a site on which it was unlawful for them to set up their home. This is not the same as a case where an individual owns land, has owned land for some time and wishes to use it for a particular purpose. Accordingly, the private and family life that they have in relation to the land -- or more importantly, the interference with this as their home -- is less strong because they have created their home in breach of the enforcement notice which already existed. It does not mean it is non-existent, but it is clearly less strong. Accordingly, when considering proportionality, one has to take that into account as well.
33. In all the circumstances, it seems to me that it is quite impossible to say that the action of the local authority in this case was disproportionate in deciding to pursue the prosecutions in question. I do not doubt that a fresh consideration will now be given to whether prosecution should proceed and what course should be adopted. It will of course be for the magistrates to decide when they hear the prosecution whether any argument then raised on behalf of the defendants has merit. No doubt, they will take account of this judgment in reaching any conclusion on that. If they decide that they have to convict -- and indeed there clearly is no defence save for the possible arguments that have been deployed before me, because there is a breach of the enforcement notices -- then of course it will be a matter for them to decide what is the appropriate penalty. Since we know, assuming the prosecution goes ahead before then, that there is an appeal due against the refusal of planning permission in January. It would not be surprising if they decided that they would like to await the decision in respect of that before deciding what is the appropriate penalty. That again is entirely a matter for them, and I am by no means indicating that that is what they ought to do. It depends entirely upon the information and the evidence put before them.
34. So far as this claim is concerned, it must, I am afraid, fail.
35. MR GREEN: My Lord, in that event, I seek the usual order, being costs against a publicly funded claimant.
36. MR JUSTICE COLLINS: You are legally aided, are you, Mr Watkinson?
37. MR WATKINSON: We were, my Lord, yes.
38. MR JUSTICE COLLINS: You are of course entitled to the usual order for detailed assessment. I do not think you can resist the usual order, can you?
39. MR WATKINSON: No, I do not resist it, and it will of course be subject to liability of who pays under section 11.
40. MR JUSTICE COLLINS: Yes, what always used to be called the football pools, and then the lottery order -- whatever it now is.
41. MR WATKINSON: We just call it a section 11 order now. So it is less descriptive, but more statutorily accurate.
42. MR JUSTICE COLLINS: Right. Thank you both.