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Court of Appeal Upholds Basildon Council's Decision to Enforce Against Largest Gypsy Site in the UK

DATE: 22 Jan 2009

The Court of Appeal (Pill, Lloyd and Moses LJJ) [2009] EWCA Civ 13 unanimously reversed the decision of Collins J. at [2008] EWHC 987 (Admin) and upheld the decision by Basildon DC to take steps to execute long-outstanding enforcement notices against the occupiers of the travellers' site at Dale Farm, Cray's Hill, Basildon, which is probably the largest such site in the UK. After numerous planning and enforcement decisions against the site, all of which had upheld the Council's judgment that this was an inappropriate location of a site (in the green belt, amongst other reasons), the Council sought to take direct action to secure compliance with the notices and the law (which was delayed following the earlier judgment in R (O'Brien) v Basildon DC [2007] 1 P. & C.R. 16). Finally, it resolved on 13 December 2007 to take direct action under s. 178 of the Town and Country Planning Act 1990.

Collins J. quashed the decision in May 2008 on the grounds that an unduly narrow approach had been taken to the issue of "need" (which is highly controversial given the 475% increase in unlawfully sited caravans in Basildon since 2000) and that duties under the Housing Act had not properly been considered. The Court of Appeal allowed Basildon's appeal. Giving the leading judgment, Pill LJ held that:

"73. A homelessness procedure was instituted in 2005 and was put on hold pending resolution of the present proceedings. On the homelessness duty, the judge's concern is primarily as to timing. I have no doubt that the council is aware of its duties under the 1996 Act and will give effect to them. Evidence has been provided as to how that will be done. The council was not required to take further action while the proceedings were pending."

"75. A decision to rely on section 178 required a consideration of the case of each claimant but the decision was not unlawful because, at that stage, at what moment, and in what manner, each individual claimant would be evicted has not been set out. The difficulties faced by the claimants were acknowledged by the council, as was their status and lifestyle, and, before the decision was taken, a balancing exercise which had regard to the appropriate factors was carried out.

76. In my judgment, sufficient consideration was given to the case of each claimant. Considerable information was provided to council members about each of them and was considered by members in a two hour closed session. While some of the terminology used by the council might suggest an approach by way of "site clearance", the documents should be considered as a whole. They demonstrate, in my view, that individual cases have been considered. Evidence available to, and considered by, the Secretary of State upon the appeals against the enforcement notices was properly taken into account and the need to update recognised. On the evidence, the judge was, in my view, in error in holding that consideration had not been given to the needs of individual families."

As Lloyd LJ added -

"87. In effect, what the claimants seek by their judicial review application is the equivalent of a temporary planning permission, or (what comes to much the same thing) an extension of time for compliance with the enforcement notices, save that the temporary permission, or the extension, would be open-ended in time. Viewed in that way, it seems to me that the claimants face an insuperable obstacle in the fact that the Secretary of State has refused to grant any temporary planning permission, and the time given (and in some cases extended) for compliance with the enforcement notices has expired. In the light of that I do not see how the council's decision to proceed to enforcement, and not to hold its hand for an undefined period (which is what the claimants say it should have done), can be said to be unlawful."

Permission to appeal has been sought by the travellers.

David Elvin QC and Reuben Taylor represented Basildon District Council.