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The Basildon Endgame


As people may well have noticed from the news on TV and in the press, the last Court of Appeal hearing in the drawn out saga of the (unlawful) Essex traveller sites resulted in a defeat for the travellers. Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 was the Court of Appeal hearing of Basildon DC’s appeal against a High Court decision that, in effect, evictions could not proceed against individual households until individual consideration of their circumstances had been carried out. Some 63 caravan pitches were at issue.

Previous litigation over planning permission had been exhausted and, for the occupants, it was admitted that they occupied the land unlawfully.

What was at issue in this case was the lawfulness of the Local Authority pursuing evictions under s.178(1) of the Town & Country Planning Act 1990, which were proposed to be en-mass for the unlawful pitches.

For the occupants, Jan Luba QC submitted that:

the duty on the council to look for alternative sites, to meet need, continues. Particularly in the absence of such a search, it was incumbent upon the council to consider the claim of each occupant not to be evicted, one by one and plot by plot. The personal circumstances of each of them should be considered. The council’s aim was for site clearance, which, it is submitted, did not have regard to individual cases and was unlawful. [para 11.]

The occupants relied on Circular 18/94, Gypsy Sites Policy and Unauthorised Camping, in which it was stated at paragraph 10:

The Secretaries of State expect authorities to take careful account of these obligations [Children Act 1989 and Housing Act 1985] when taking decisions about the future maintenance of authorised Gypsy caravan sites and eviction of persons from unauthorised sites.

and on Circular 01/2006, Paragraph 40 of which requires local authorities to have regard to their statutory duties, including those under Part VII of the Housing Act 1996 and the Race Relations Act 1976; and Paragraph 43 provides:

Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTA […] Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

Basildon’s argument was that it would perform its duties under Part VII, which had been stayed pending the outcome of these proceedings. ‘Need’ was not the same as demand, and ‘need’ had to be shown to be in the district rather than the east of england as a whole. The Council’s detailed examination in its report of December 2007 had considered individual circumstance and demand. In LJ Pill’s lead judgment at para 43

I have set out the contents of the officers’ report and minutes in some detail. Having considered these as a whole, it does not appear to me that the Committee failed to address the correct issues when deciding whether to take action under section 178. Need and the absence of alternative sites in the District was recognised, as it had been in the Secretary of State’s planning decisions. On the other hand, it does not follow from a claimant’s wish to live on a site in Basildon District that he is entitled to have one there. The council was entitled to regard the situation of the sites in the Green Belt as a factor of substantial weight when doing the exercise they acknowledge was required. However, both when considering whether planning permission should be granted and when making an assessment under article 8 of the Convention, such personal circumstances as the proximity of family members may also be a factor. I accept the formulation of Ouseley J in O’Brien v Basildon District Council [2007] 1 P&CR 16. Ouseley J stated, at paragraph 171, that “the question of local connection could be a live issue in the assessment of needs.” He also stated that the Green Belt factor is also “a matter for legitimate debate.

The Council argued that demand for the east of england was clear, but not the allocation to Basildon. As the Sec of State had refused temporary planning permissions and upheld enforcement on consideration of individual cases, there was no reason to uphold a failure under Para 43 of the guidance.

Held – at paras 70-71:

The procedure which has been followed, the refusal of planning permission, consistently supported by the Secretary of State, the taking of enforcement action under section 172 of the 1990 Act, and the flagrant disregard of enforcement orders upheld by the Secretary of State, can legitimately form the basis for a decision to take action under section 178 of the 1990 Act. In taking that decision, the persistent breaches both of planning control and the criminal law are factors which may be taken into account. The council was not required to act as if the decisions on the enforcement notices had not been taken.

Given the planning context, I do not consider that the council has erred in law in failing to give further consideration to alternative sites at the time the decision to take action under section 178 was taken. As appears from Circular 01/2006, sites are to be provided through the development plan process. I have referred to that process and to the Secretary of State’s comment on its current stage. In his planning decisions, the Secretary of State has plainly been mindful of factors in favour of the claimants and has declined to grant planning permission. Temporary permissions, contemplated in paragraphs 45 and 46 of the Circular have been refused by the Secretary of State, mindful of all the factors involved. I agree with the approach to this issue of Keene LJ in O’Brien, including his reference to the planning system being development plan-led and the likely exacerbation of controversy by by-passing the system. Whether an attempt should be made to bring forward DPD allocations (paragraph 43 of Circular 01/2006) may be the subject to debate but failure to do so does not, in my judgment, and in this particular context, render a decision to act under section 178 unlawful.

And, LJ Lloyd on the Part VII HA 1996 issue:

[A]lthough the question of homelessness was embarked upon at an earlier stage, it has, properly, been in abeyance until now, and that if the council’s decision stands, as a result of the appeal, the housing department will engage with those affected, to see which of them wish to apply under section 183 of the 1996 Act, and the council will comply with its duties under the Act in relation to those who do so apply. None of that had to be addressed as a pre-condition of proceeding to enforcement under the 1990 Act. Officers will take the necessary steps to comply with Part VII of the 1996 Act as part of the process of deciding how and when to carry out their delegated functions under the council’s decision.

Appeal allowed. The evictions under s.178 can proceed.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

1 Comment

  1. chief

    The House of Lords refused leave to appeal in this case last week (Hat-tip to Garden Court’s bulletin).



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