QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| THE QUEEN On the application of
(1) NAYLEY MITCHELL
|- and -
HORSHAM DISTRICT COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Robin Green, (instructed by I. R. Davison, Head of Legal Services Horsham District Council,) for the Defendant;
Crown Copyright ©
Mr Justice Forbes :
"171A. – (1) For the purposes of this Act –
(a) carrying out development without the required planning permission …
constitutes a breach of planning control.
(2) For the purposes of this Act –
(a) the issue of an enforcement notice …
constitutes taking enforcement action."
"172. – (1) The local planning authority may issue a notice (in this Act referred to as an "enforcement notice") where it appears to them –
(a) that there has been a breach of planning control; and
(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations.
(2) A copy of an enforcement notice shall be served –
(a) on the owner and on the occupier of the land to which it relates; and
(b) on any other person having an interest in the land being an interest which, in the opinion of the authorities, is materially affected by the notice.
(3) the service of the notice shall take place –
(a) not more that twenty-eight days after its date of issue; and
(b) not less than twenty-eight days before the date specified in it as the date on which it is to take effect."
"173. – (1) An enforcement notice shall state –
(a) the matters which appear to the local planning authority to constitute the breach of planning control …
(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are –
(a) remedying the breach … by discontinuing any use of the land or by restoring the land to its condition before the breach took place …
(8) an enforcement notice shall specify the date on which it is to take effect and, subject to sections 175(4) and 289(4A), shall take effect on that date."
"174. – A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.
(2). An appeal may be brought on any of the following grounds–
(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted …
(3) An appeal under this section shall be made either–
(a) by giving written notice to the Secretary of State before the date specified in the enforcement notice as the date on which it is to take effect …
(4) A person who gives notice under subsection (3) shall submit to the Secretary of State, either when giving the notice or within the prescribed time, a statement in writing–
(a) specifying the grounds on which he is appealing against the enforcement notice; and
(b) giving such further information as may be prescribed."
"175. – (1) The Secretary of State may by regulations prescribe the procedure, which is to be followed on appeals under section 174 …
(4) Where an appeal is brought under section 174 the enforcement notice shall subject to any order under s.289(4A) be of no effect pending final determination or the withdrawal of the appeal."
"177. – (1) On the determination of an appeal under section 174 the Secretary of State may –
(a) grant planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control …"
"178. – (1) Where any steps required by an enforcement notice to be taken are not taken within the period of compliance with the notice, the local planning authority may –
(a) enter the land and take the steps; and
(b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so. …"
"179. – (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) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.
(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on.
(5) A person who at any time after the period for compliance with the notice, contravenes subsection (4) shall be guilty of an offence.
(7) Where –
(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and
(b) the notice is not contained in the appropriate register kept under section 188,
it shall be a defence for him to show that he was not aware of the existence of the notice. …"
"180. – (1) Where, after the service of –
(a) a copy of an enforcement notice …
planning permission is granted for any development carried out before the grant of that permission, the notice shall cease to have effect so far as is inconsistent with that permission. …"
"181. – (1) Compliance with an enforcement notice, whether in respect of–
(a) the completion, removal or alteration of any buildings or works;
(b) the discontinuance of any use of land; or
(c) any other requirements contained in the notice,
shall not discharge the notice.
(2) Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice. …"
"187B. – (1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injection, whether or not they have exercised or are proposing to exercise any of their powers under this Part.
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. …"
"188. – (1) Every district planning authority … shall keep in such manner as may be prescribed by a development order, a register containing such information as may be so prescribed with respect –
(a) to enforcement notices …
which relate to land in their area."
(3) Every register kept under this section shall be available for inspection by the public at all reasonable hours."
"285. – (1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought. …"
"5. I purchased and moved onto my land in or about May 2001 from a Leonard Smith who is the Husband of Violet Smith. No transfer documents were provided to me and I paid for my land in cash. …
7. Before moving onto the land I resided at a County Council Gypsy Site at Yapton in West Sussex. The atmosphere on site was not suitable to bring up a young family and I decided to purchase my own piece of land as a base for my family and myself. It is my intention to remain on the land if I am allowed to. My children's education is very important to me and it would help them to remain in the schools they currently attend. If we were forced back onto the road I am not sure my children would benefit from a stable education.
8. On site I have a mobile home and 1 touring caravan. We would not all be able to live in the touring caravan if the mobile home was impounded by the Defendants.
9. When I purchased the land I was unaware of any Enforcement Notices or Injunction proceedings. I am unable to read or write and Mr Smith never told me about such proceedings being issued."
"2. I left the Yapton site because I could no longer bear it. There was widespread drug use and violence. My priority was to get away from this rather than live on my own land for the sake of it.
3. I have never met Mr Seward. The site manager for Yapton is a man called Nigel and if he had been consulted he would have confirmed my worries and that the site was not a suitable place to bring up my children. I agree I left without paying some rent.
4. Had I been given the opportunity I would have asked Nigel to be a witness."
Re: Stationing of caravans and unauthorised residential use of land at North Lane, Ashington
I am writing to advise you that if the owner of the land that you currently occupy takes action to evict you, and you move, or attempt to move back on to the adjacent land to the west that was previously occupied, then the Council will take direct action under s. 178 of the Town and Country Planning Act 1990 (as amended), to tow you off that land. This action will be taken immediately, to ensure compliance with the valid enforcement notices that relate to this land.
The caravans will be stored for three days and then disposed of. The costs which the Council incurs in removing and storing the caravans, will be charged to the owner of the land. In the event of failure to pay, the Council will seek to recover those costs by placing a charge on the land. This may result in the sale of the land in the event of non-payment. …"
"2. At the same time as the Enforcement Notice relating to the stationing of a touring caravan was issued on 11th February 1992, a notice was also issued in respect of the stationing of a portacabin for residential purposes … . Local residents at that time raised concerns regarding additional residential development in this area which were represented by a solicitor at the public inquiry held on 1st December 1992. The Planning Inspector at that time concluded that the circumstances put forward did not outweigh the harmful effects of residential development in this vulnerable area, and that its retention, even for a temporary period would be contrary to the provisions of the development plan and the public interest. The appeal was therefore dismissed and the unauthorised use subsequently ceased. …
3. On 25th April 2002, I wrote to the occupiers of land off North Lane, Ashington advising that if they moved onto the adjoining land, the Council would take direct action immediately in order to ensure compliance with the valid notices relating to that land. The reason for this letter was that the Council had received correspondence on behalf of the owner of the adjoining land, on which the claimants were located at that time. This indicated that he was intending to pursue legal action to evict them from his land, and it was anticipated that they would move onto the land to the west that was covered by the existing notices. The letter was hand delivered to the site by the Planning Enforcement Officer and received in person by the second claimant. The Enforcement Officer was advised that the first claimant was on holiday and a letter was therefore left for his attention.
4. I am aware that the planning enforcement officer was accompanied on 25 April 2002 by the Council's Housing Advisory Manager who had been requested to investigate their circumstances and offer housing advice and assistance. From what the Housing Advisory Manager reported to me and from all the facts known to the Council at that time, I could see no compelling reasons that their hardship would override the harm caused by the breach of planning control.
5. The caravans were subsequently moved onto land which was covered by the existing notices at the end of May 2002. On 27th May 2002, correspondence was received from Alexander & Co, the claimant's (sic) solicitor that suggested that the delegated Authority prepared by the Council did not take into account their clients (sic) personal circumstances.
6. On 30th May 2002, the Housing Advisory Manager again visited the site to reassess the situation and to see if the Gypsies would give him any more information regarding their personal circumstances. This was also considered appropriate as the caravans had recently been moved from the adjoining land. He told me that they refused to do so and were not interested in seeking his help.
7. On 10th June 2002, I telephoned the Traveller Education Need Support Unit at West Sussex County Council and spoke with Chrissy Gisby, one of the field officers. She confirmed the names of all the family members that were residing at the site and which school and pre-schools the children were attending. She advised that the claimants and their families were previously resident at the Ryebank site, and that the children had attended the local school. She was not aware of any medical conditions that should be taken into account.
8. On 6th June 2002, a letter was sent from the Council to …. the claimant's (sic) solicitors requesting further information. I now produce a copy of that letter dated 6th June 2002… . It was requested that this information be provided by 13th June 2002 and confirmed that the Council would not seek to take direct action until after that date, and that the Council had reviewed the information provided.
9. A letter was received by facsimile on 10th June 2002 from Alexander & Co confirming the queries that had been raised by the Council. I now produce a copy of that letter dated 10th June 2002…
10. On 11th June 2002, I telephoned the Gypsy Liaison Office of West Sussex County Council and spoke with John Pears, a Gypsy Liaison Officer. … and as a result of what he advised, I decided that the Gypsies did not have to leave the designated site and could return to the site. I took into account the circumstances of the Gypsies as described by their Legal Representatives, investigations carried out by the Housing Advisory Manager and the impact on the Human Rights of the residents and I concluded that the harm caused by the breach of planning control was greater than the hardship that the Gypsies would suffer if they had to leave the site and the proposed course of action was therefore necessary and proportionate.
11. The decision to take direct action and the way that this decision was reached is compatible with relevant government policy, circular advice and local planning policies. These considerations are set out in paragraphs 2.2 and 2.3 of the fresh delegated authority report that I prepared which is dated 13th June 2002. Consideration was also given to whether the council was likely to grant planning permission for the retention of the caravans. Taking into account the planning history, the previous Planning Inspector's concerns regarding the residential use of the land, and the current occupier's (sic) situation, it was concluded that additional residential development would be contrary to planning policies and there was no planning justification to allow the caravans to remain.
12. Consideration was also given to the impact that the continuing presence of the caravans would have on the land and in particular, the Human Rights of other residents living in the area from whom the Council receives regular complaints about the breach of planning control, particularly as some of these residents had incurred expenditure to be professionally represented in supporting the Council at the previous planning appeal. It was concluded that additional residential development would adversely affect the rights of other residents living in the area by halving the appearance of their environment.
13. On 7th August 2002, the Council received planning application forms relating to the stationing of four gypsy caravans, together with associated outbuildings on the land. On 7th August 2002, a letter was sent to Alexander & Co, the occupier's (sic) agent requesting that the application(s) forms be dated and the submission of further plans and details relating to the caravans and buildings. A reminder letter was sent on 27th September 2002, however no further information has however been submitted, and the application has not therefore been registered or determined.
14. Since the claimant's (sic) application hearing on the 28th August, they have not resided on the land until very recently. I have been advised by the adjoining landowner that the water supply to the site, which had been accessed by the claimants without authority, was disconnected at that time.
15. On 14th October 2002, the Council was advised that one of the caravans had been removed from the site, and this was confirmed by a site visit. The caravan that had been removed was previously occupied by Mr Hearne and his family.
16. On 21st November 2002 the Council was advised that a touring caravan had been brought on to the land and subsequent to that, a larger caravan. The Council has since been advised that the caravan previously occupied by Mr Mitchell has been occupied since 2nd December 2002, however I believe that the other two caravans have remained unoccupied."
"2. The West Sussex County Council owns and manages the Gypsy site known as Ryebank, Yapton Road, Middleton on Sea, West Sussex (hereinafter referred to as "the site"), which is referred to by the Occupiers as either "Ryebank" or "Yapton". The site is home to a number of Gypsy families, and there are children on the site. Facilities provided for children include a grassed play area, and I am of the opinion that the site is suitable and safe for families to live on.
3. On 25th March 1995,the First Claimant and his family moved onto the site. They left the site 16th June 2001, leaving arrears for occupation charges of £342.20. That amount remains outstanding.
4. On 29th August 1998 the Second Claimant and his family moved onto the site. They left the site on 12th May 2001, leaving arrears for occupation charges of £161.80. That amount remains outstanding.
5. I have spoken to the warden at the site and he told me that the Claimants said that they were moving to a piece of land they had bought. If they wished to be considered for accommodation on the site in the future, their application would be dealt with when the outstanding arrears are paid, and then accommodation is allocated on the basis of the priority of the applicant families.
6. With regard to the suitability and safety of the site, I would say that there are 10 Gypsy sites in West Sussex managed by the West Sussex County Council. I am not aware that there are any problems with the suitability or security of this site, and it is noteworthy that both of the Claimants resided on the site for such a considerable length of time, if they had such fears. I am not aware of any complaints about security or safety made by the Claimants prior to these proceedings, and the reason given for leaving the site was simply that they had bought their own land to live on.
7. I would also comment that 80% of the children from Gypsy site(s) in West Sussex attend school as opposed to a national average of 20%. Gypsy families have the full support of the Travellers Education Support Unit, who endeavours to ensure that all Gypsy children have the opportunity to attend school, and there are schools in the vicinity of every Gypsy site that children can attend."
"2. On 25th April 2002 I visited land at North Lane, Ashington, West Sussex. I was told there were some Gypsies stationed in caravans or mobile homes without the permission of the landowner, and the landowner was about to take action to evict them. The Head of Legal Services requested me to visit them to investigate their circumstances and to offer housing advice and assistance. I attended with the Planning Enforcement Officer. There were 3 families with children living on the land. Those present on the land were not interested in talking to me, and were not forthcoming about their circumstances. As soon as they discovered who I was, they said emphatically that they did not want to make a housing application and were not interested in answering any questions. I left them my card and told them to contact me if they wanted to. The Panning Enforcement Officer gave them letters and read the contents to them.
3. On 30th May 2002, I again visited the site. I had been requested to do so because the circumstances had changed as the caravans had moved, and I was informed by the Head of Legal Services that planning enforcement action was being contemplated. The Gypsies recognised me, and reiterated that they were not interested in any help or advice I could give them, and that they did not want to make a housing application. The only issue they were interested in talking to me about was when the Defendant proposed to take the direct action threatened, to move them off the site."
Unauthorised development consisting of the stationing of caravans and touring caravans on the land unrelated to the use of the land for agriculture in breach of effective Enforcement Notices, and assessment as to whether it is expedient and proportionate to take direct action to secure continued compliance with the Notices.
That direct action be taken pursuant to S. 178 of the Town and Country Planning Act 1990, to remove the caravans and touring caravans stationed on the land, in order to secure continued compliance with effective Enforcement Notices.
REASONS FOR RECOMMENDATIONS
The unauthorised use of the land for the stationing of caravans and touring caravans constitutes development in the countryside not justified by agriculture or other appropriate purpose, and is detrimental to the rural character and visual amenities of the locality.
1. THE PURPOSE OF THIS REPORT
To determine the most appropriate course of action to secure continued compliance with the effective Enforcement Notices issued on 22nd March 1989 relating to the unauthorised use of the land as a caravan site, and 11th February 1992 relating to the use of the land for the stationing of a touring caravan taking into account the circumstances of the gypsies currently in occupation.
"9. HOW THE PROPOSED COURSE OF ACTION WILL RESPECT HUMAN RIGHTS
Article 8 (Right to respect for a home private and family life) … (is) relevant to the consideration of this proposal.
Article 8 – The Council has considered the proposed course of action in the light of the further information obtained from the occupier's (sic) agent, Mr Weeks and other statutory bodies regarding the occupiers (sic) social, educational, housing and medical needs. …"
"Although the taking of direct action would amount to an interference with the occupiers (sic) article 8 rights, it is considered that this interference would be in accordance with the law, pursue the legitimate aim of protecting the environment and be proportionate in the circumstances".
It is recommended that direct action be taken pursuant to S. 178 of the Town and Country Planning Act 1990 to remove the caravans and touring caravans stationed on the land, in order to secure continued compliance with the effective Enforcement Notices.
The unauthorised use of the land for stationing of caravans and touring caravans constitutes development in the countryside not justified by agriculture or other appropriate purpose and is detrimental to the rural character and visual amenities of the locality. The circumstances of the gypsies do not outweigh the planning harm that will be caused, or the precedent that would be set if this use were allowed to continue.
It is considered that direct action would be the most appropriate means of securing compliance with the effective Enforcement Notices. This will achieve compliance quickly, without the need for prolonged and costly court proceedings."
(i) in making the decision to exercise its statutory power to use direct action, the Council had given effect to section 178 of the 1990 Act in a way that was incompatible with the claimants' relevant human rights, because the exercise of that power would be a disproportionate interference with those human rights and, as a result, the Council's actions would be unlawful ("the Proportionality Issue"): see Grounds 2 and 3 of the Grounds of Application and paragraph 3 of Mr Davies' written supplementary submissions); and/or
(ii) the Council's decision to take direct action did not require any or any proper account to be taken of the particular circumstances of the claimants and their families and/or, by not addressing or taking such circumstances into account, the Council had failed to have regard to relevant and material considerations in the decision-making in question ("the Material Considerations Issue": see Ground 4 of the Grounds of Application and paragraph 24 of Mr Davies' supplementary written submissions).
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …"
(b) Article 8 of the Convention (Right to respect for private and family life) is in the following terms:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"32. The issue of a warrant of possession in the County Court is an administrative act; the purpose of which is to enable there to be carried into effect the judicial determination, which has been already expressed in the order for possession in aid of which the warrant is issued. The issue of the warrant involves no determination of the former tenant's civil rights and obligations. His rights and obligations as a tenant have already been determined at a public hearing at the time when the order for possession is made. His right – as a former tenant who has remained in occupation following determination of the tenancy – to apply for an order under section 85(2) of the Housing Act 1985 is unaffected by the issue of the warrant."
"11.2 Although this (i.e. the existing un-amended section 178) will never be more than a last resort power, it could be strengthened by making it available for any steps required to be carried out under an enforcement notice. At present it does not extend to … the discontinuance of a use. I do not see any real need for these exclusions. The remedy of judicial review is available to prevent abuse. …"
"While there are clearly practical difficulties over using this power to discontinue a use, where an injunction may be considered more appropriate, it is clear that this power can be used to remedy associated matters such as access, fencing, water supply, etc."
"9. The Secretary of State continues to consider that local authorities should not use their powers to evict Gypsies needlessly. He considers that local authorities should use their powers in a humane and compassionate way, taking account of the rights and needs of the Gypsies concerned, the owners of the land in question, and the wider community whose lives may be affected by the situation."
"38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s. 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, "entirely foreclosed" at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary planning permission.
39. Relevant too will be the local authority's decision under s 187B(1) to seek injunctive relief. They, after all, are the democratically-elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the art 8(2) questions as to necessity and proportionality.
40. Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be "commensurate" – in today's language, proportionate. The Hambleton approach seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the 1998 Act, to my mind it cannot be thought consistent with the court's duty under s 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests – here the gipsy's private life and home and the retention of his ethnic identity – are at stake.
42. I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."
(i) the following issues must be specifically addressed by the planning authority:
(a) whether to grant any planning permission that has been sought by the person affected;
(b) an assessment of the impact, if any, of the continuing breach of the enforcement notice on the surrounding community;
(c) an assessment of any environmental considerations that will result from a continuing breach of the enforcement notice;
(d) the compatibility of the decision to take direct action and the way it was reached with any relevant planning policy considerations and ministerial guidance; and
(e) proper consideration of the actual need for urgency in bringing the breach of the enforcement notice to an end.
(ii) the decision-making must be procedurally fair. In particular, those affected by the proposed direct action must be given the opportunity to make observations about the findings upon which the planning authority proposes to act and the authority must give proper consideration to any such observations before taking any action;
(iii) thereafter, the planning authority must strike a balance between the interference with the Article 8 rights of the affected person and the public interest in maintaining and enforcing relevant planning policy and law;
(iv) thereafter, it will be necessary to give the affected person an opportunity to consider and, if necessary, to seek a judicial remedy for a perceived injustice and, in order to do this, the planning authority must indicate when it is proposed to take direct action and give a reasonable opportunity for legal advice to be obtained and, if so advised, for permission to be sought to apply for judicial review of the decision in question; and
(v) finally, if direct action is to be carried into effect, the manner in which it is to be exercised must itself be proportionate; e.g. it must take into account any infirmity of the affected person, it must respect the person's dignity and be carried out at a reasonable time of day.
MR JUSTICE FORBES: Mr Lillington, you presumably have a copy of the approved judgment now?
MR LILLINGTON: Yes, my Lord.
MR JUSTICE FORBES: Thank you to both yourself and Mr Green for the various suggested corrections. Would you please convey my personal apologies to Mr Davies for having, somehow or other, managed to omit his surname in the body of the judgment, continually referring to him as "Mr Owen". I simply do not know how I managed to do it.
MR LILLINGTON: I am sure he will not be offended.
MR JUSTICE FORBES: Do pass my personal apologies to him. Is there anything further you wish to say?
MR LILLINGTON: My Lord, there are two matters. I do not have a letter from the other side, but my instructions are that the solicitors firms have been in contact with each other, and, so far as costs are concerned, the council is not seeking a costs order. It is agreed that the order that the court should make is no order for costs, save for public funding assessment for my clients, who were legally aided.
The other point, my Lord, is that I would ask formally for permission to appeal, in particular on the article 6 point, if I can put it that way. Essentially, the way your Lordship has dealt with the matter is to agree with Mr Green's submissions that the issue of the enforcement notice amounted to a determination of the right to occupy the land, as it were, a decade ago when it was issued. What we would say in response to that is that there was no planning permission to occupy the land residentially before the enforcement notice was issued, nor afterwards. It did not change the planning status of the land at all, and therefore did not amount to a determination of anyone's civil rights when the enforcement notice was issued. It was merely going to enforcement and opening the door to a possible prosecution, and indeed to possible direct action.
We would also say that there is a distinction between a remedy such as an enforcement notice which would appear to run -- it is really a remedy in (inaudible) in that it attaches to the land for all time, and then puts someone in the position of my clients in this case of effectively an argument that their civil rights were determined, when they were never a party to the determination, if there was a determination when the enforcement notice was issued.
The case of St Brice, which was the one relied on, related to possession, and the finding there that the issue of the warrant was merely an administrative act which came on the back of the article 6 compliance (inaudible) should be distinguished because that, of course, is a remedy in persona, and that tenant had had the opportunity to argue his case at the hearing. It did not apply to my clients. Essentially, that is the ground of article 6 which we would wish to take to the Court of Appeal, and also the article 8 point of proportionality. It is an important matter, an important principle, raised by this case, which is watched carefully by planning authorities in this country. And in the absence of previous authority, in my submission, it would be appropriate to take it to the Court of Appeal.
MR JUSTICE FORBES: Thank you.
MR LILLINGTON: If your Lordship is minded to give me permission, then I would ask for a stay on any action.
MR JUSTICE FORBES: Yes. Is there anything else?
MR LILLINGTON: My Lord, no.
MR JUSTICE FORBES: I direct that the written judgment I handed down today is to stand as the transcript of my judgment in this matter. Accordingly, for the reasons appearing in that written judgment, I dismiss the application.
I make no order as to costs other than to direct an appropriate assessment of the claimant's publicly funded costs. I have heard and considered the application for permission to appeal. I refuse permission to appeal. In my view, there is no reasonable prospect of success in the proposed appeal, and there are no other special circumstances for the grant of permission.
So that you know what I have written on the appropriate form, Mr Lillington, what I have written is:
"No reasonable prospect of success and no other special circumstance for grant of permission."
That does not prevent you from renewing the application in the Court of Appeal.
I think that covers everything, does it not? It follows from that that I refuse the application for a stay. Thank you very much.