England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice, Strand, London WC2A 2LL
		20th December 2005

Mr Justice Crane

General

1. This is now a claim for a declaration that section 183(4) of the Town and Country Planning Act 1990, as amended, is incompatible with article 14 of the European Convention on Human Rights to the extent that it provides that a stop notice shall not prevent the use of any building as a dwelling house but does not provide the same protection to those dwelling in a caravan, thus having a disproportionate effect on Romany Gypsies and Irish Travellers.
2. The claim involves consideration of

"the very difficult question of how potential family and cultural rights of gypsy and Romany populations interact with and are affected by the municipal planning laws of this country", per Buxton LJ in Clarke v. Secretary of State for Transport, Local Government and the Regions and Tunbridge Wells BC [2002] JPL 1365.

3. The history of the proceedings is this. On 28 May 2004 a planning application was lodged and land was occupied by the Claimant and other Romany gypsies. On 1 June two enforcement and two stop notices were issued by the Wychavon District Council. A claim for judicial review was lodged. On 30 June Morland J. granted an injunction against the Claimant and others, but stayed its operation to give time for further proceedings. On 14 July Collins J. granted permission to apply for judicial review against the First Defendant. There were then orders giving directions and finally on 4 November 2004 Sullivan J. by consent ordered that the claim for judicial review against the Defendants should be dismissed, but granted permission for the present claim for a declaration.

The history of the legislation

4. Under Part VII of the 1990 Act, as amended, there are four principal methods of enforcement of planning control by local planning authorities:

(i) an enforcement notice under section 172;

(ii) an injunction;

(iii) a stop notice;

(iv) a temporary stop notice.

5. Although injunctions had been available in some circumstances before 1991, those circumstances were clarified and widened by the Planning and Compensation Act 1991.
6. Stop notices were first introduced by the Town and Country Planning Act 1968. They are not free-standing, since a stop notice can only be issued if an enforcement notice has been served or at the same time as an enforcement notice is served. When stop notices were extended to cover changes of use, by the Town and Country Planning (Amendment) Act 1977, Parliament provided an exemption for both dwelling houses and some caravans. After that amendment, section 90(2) of the Town and Country (Amendment) Act 1971 read:

"(2) A stop notice shall not prohibit –

(a) the use of any building as a dwellinghouse, or

(b) the use of land as the site for a caravan occupied by any person as his only or main residence (and for this purpose 'caravan' has the same meaning as it has for the purposes of Part I of the Caravan Sites and Control of Development Act 1960) …".

7. In February 1989 the Report of Robert Carnwath QC Enforcing Planning Control was published. In Chapter 7 at paragraph 9.1 he said that the stop notice procedure offered a planning authority the best means of urgent action where that was justified. He considered that the failure to use that procedure effectively was one of the main reasons for criticism of the system. In paragraph 9.8 he proposed two amendments to section 90(2), one of which was to limit the exemptions. He considered that experience had shown that there was little risk of the stop notice procedure being over-used by authorities and that the objective should be to remove impediments to action in appropriate cases. He continued (at 9.10):

"It has also been suggested by a number of submissions that section 90(2)(b), which provides an exemption for residential caravans, should be repealed. In Runnymede BC v. Smith [1986] JPEL 592, it was held that this provided protection even for caravans which had come on to the site with knowledge of the stop notice, and an injunction was refused on these grounds. In my view, this exception is an unnecessary restriction on the use of the power to prevent serious injury to amenity in appropriate cases. The potential damage caused by unlawful caravan sites can be considerable, and the risks of abuse are not significantly greater than in other cases where the stop notice procedure applies, for example where livelihoods are at stake".

8. Earlier in his report, at paragraph 2.7 in Chapter 4, he had noted that

"… the preponderance of cases concerned with residential caravans is in many cases a reflection of the shortage of affordable housing, or of designated caravan sites. Local authorities are understandably reluctant to take action which has the effect of depriving a family of its only home, or adding to the problems of their own housing department. The problem may also be related to the failure of the local authorities to fulfil their duties to provide caravan sites for gipsies under the Caravan Sites Act 1968".

9. The consolidating 1990 Act continued the dual exemption (in section 183), but the 1991 Act substituted a new section 183 which had the effect of omitting the exemption for the use of land as a caravan site, while retaining the exemption for the use of any building as a dwellinghouse. Section 183(4) now reads, simply:

"A stop notice shall not prohibit the use of any building as a dwellinghouse".

10. The Human Rights Act 1998 incorporated the ECHR into English law. Article 8 reads:

"(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 is 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".

Article 14 reads:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion. Political or other opinion, national or social origin, association with a national minority, property, birth or other status".

11. Temporary stop notices were introduced by the Planning and Compulsory Purchase Act 2004, section 52, which inserted sections 171E to 171H in the 1990 Act. Section 171F(1) reads:

"(1) A temporary stop notice does not prohibit –

(a) the use of a building as a dwelling house;

(b) the carrying out of an activity of such description or in such circumstances as is prescribed".

Such circumstances were prescribed by the Town and Country (Temporary Stop Notice) (England) Regulations 2005:

"Circumstances in which temporary stop notice does not prohibit stationing a caravan

2. - (1) The stationing of a caravan on any land in the circumstances specified in paragraph (2) is prescribed for the purposes of section 171F(1)(b) of the Town and Country Planning Act 1990.

(2) The circumstances are that –

(a) the caravan is stationed on the land immediately before the issue of the temporary stop notice; and

(b) the caravan is at that time occupied by a person as his main residence;

unless the local planning authority consider that the risk of harm to a compelling public interest arising from the stationing of the caravan is so serious so as to outweigh any benefit, to the occupier of the caravan, in the stationing of the caravan for the period for which the temporary stop notice has effect".

Article 14

12. That gypsies and travellers require some special consideration is common ground. In Connors v. United Kingdom (2005) 40 EHHR 189, the European Court of Human Rights said

"84. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Art.8 to facilitate the gypsy way of life".

Since this is common ground, it is not necessary to review the evidence supporting this proposition.

13. Mr.Philip Sales on behalf of the Secretary of State accepts that a higher proportion of gypsies and travellers rather than any other relevant group would be likely to be affected by stop notices served under section 183, as amended, on caravans used for residential purposes. He accepts that although section 183 appears on its face to be a neutral provision, since it has a greater impact on gypsies and travellers than on the general population, it is a provision which is indirectly discriminatory in its effect in relation to a status falling within the scope of Article 14 and hence that there is an onus on the State to give an objective justification for the rule as its formulated.
14. In Ghaidan v. Godin-Mendoza [2004] 2 AC 557 Lord Nicholls said that where the alleged violation of Convention rights comprises differential treatment based on grounds such as race or sex or sexual orientation, the court will scrutinise any reasons with intensity.
15. In R (Carson) v. Secretary of State for Work and Pensions [2005] 2 WLR 1369 at paragraph 28 Lord Hoffman referred to the well known questions formulated by Brooke LJ in Wandsworth London Borough Council v. Michalak [2003] 1 WLR 617 at paragraph 20:

"(i) Do the facts fall within the ambit of one or more of the substantive Convention provisions… (ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other? (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification …"

16. Lord Hoffman continued:

"30. The real difficulty about the questions is the apparent overlap between questions (iii) and (iv). If an "analogous situation" in question (iii) means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment. In what kind of case does one go on to question (iv) and ask separately about justification? Laws LJ [2003] 3 All ER 577, 604, para 61 suggested that it might clarify matters to substitute for question (iii) a "compendious question":

"Are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X".

31. But in my opinion there are two difficulties about this formulation. First, it appears to reduce question (iii) to asking whether there is, so to speak, a prima facie case of discrimination (do the facts "call for" a justification) and to treat question (iv) as dealing with whether the call has been answered. But this division of the reasoning into two stages is artificial. People don't think that way. There is a single question: is there enough of a relevant difference between X and Y to justify different treatment? Secondly, the invocation of the "rational and fair-minded person" (who is, of course, the judge) suggests that the decision as to whether the differences are sufficient to justify a difference in treatment will always be a matter for the judge. In many cases, however, the decision will be a matter for Parliament or the discretion of the official entrusted with statutory powers.

32. It might be more logical to confine question (iv) to justification for different treatment of cases which were not relevantly different, eg to achieve some legitimate teleological or administrative purpose, such as correcting the effect of past discrimination or the administrative convenience of having clear distinctions. That would explain why in such cases the courts insist that the discrimination must be necessary and proportionate for the object to be achieved. But neither the Strasbourg court nor the English courts have approached the matter in this way (in Michalak itself, Brooke LJ regarded the fact that near relatives were relevantly different from distant relatives as an answer to question (iv) rather than question (iii)) and it is certainly not expressed in the formulation of the questions."

17. The European Court of Human Rights has held that the protection of the environment through planning control is a legitimate and important objective in the public interest, even in cases which concern depriving gypsies of their place of residence. Chapman v. UK (2001) 33 EHRR 18 was such a case, in which a gypsy complained of enforcement action against her. Her claim failed and the Court said:

"95. Moreover, to accord to a gypsy who has unlawfully established a caravan site at a particular place different treatment from that accorded to non-gypsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under Article 14 of the Convention.

96. Nonetheless, although the fact of being a member of a minority with a traditional lifestyle different from that of the majority of a society does not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, it may have an incidence on the manner in which such laws are to be implemented. As intimated in the Buckley judgment, the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory planning framework and in arriving at the decisions in particular cases … To this extent there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life …

…

102. Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under Article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection (see para 81). When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."

Hansard

18. I must digress to deal with the submission by Mr.Charles George QC that I should have regard to Hansard reports relating to the passage of the 1991 amendment through Parliament. Without opposition I granted leave to refer to Hansard, but that leave did not pre-empt submissions as to the relevance of the passages relied on. In summary the submission of Mr.George QC was as follows. The 1991 Bill as introduced in the House of Lords substituted a new section 183 of the 1990 Act. There was nothing to highlight the fact that the wording of section 183(4) was being altered to exclude caravans. No Minister drew attention to that particular change. No debates reveal any reference to that change and such references as there were to the needs of gypsies did not refer to this subsection. Thus, he wishes to submit, Parliament never considered this particular change and cannot be held to have taken a deliberate decision within the margin of appreciation accorded to national authorities.
19. Mr. Sales submits that it is impermissible to examine the proceedings in Parliament in this way and that to do so would fall foul of the Bill of Rights (1688):

"That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament".

20. The European Court of Human Rights has on occasions considered debates of the United Kingdom Parliament. In Hirst v. UK (No.2), 6 October 2005, the court was considering whether the Representation of the People Act 1983 section 3, barring serving prisoners from voting, was in breach of article 25. Having accepted that the national legislature and domestic courts have a wide margin of appreciation, the Court continued:

"79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote. It is true that the question was considered by the multi-party Speaker's Conference on Electoral Law in 1968 which unanimously recommended that a convicted prisoner should not be entitled to vote. It is also true that the Working Party, which recommended the amendment to the law to allow unconvicted prisoners to vote, recorded that successive Governments had taken the view that convicted prisoners had lost the moral authority to vote and did not therefore argue for a change in the legislation. It may perhaps be said that, by voting the way they did to exempt unconvicted prisoners from the restriction on voting, Parliament implicitly affirmed the need for continued restrictions on the voting rights of convicted prisoners. Nonetheless it cannot be said that there was any substantive debate by members of the legislature on the continued justification in the light of modern day penal policy and of current human rights standards for maintaining such a general restriction on the right of prisoners to vote".

21. The House of Lords had considered in Wilson v. First County Trust Ltd. (No.2) [2004] 1 AC 816 the extent to which the court may have regard to parliamentary debates when exercising its role of evaluating the compatibility of primary legislation with Convention rights. The Court of Appeal had referred to such debates, not as an aid to interpretation, but on the reason which led Parliament to enact section 127(3) of the Consumer Credit Act 1974. Counsel for the Speaker of the House of Commons and the Clerk of the Parliaments appeared to express the concern of the House Authorities at this exercise.
22. Lord Nicholls (at paragraph 61) said that the court will look primarily at the legislation, but not exclusively so. The underlying social purpose of the legislation is relevant. The court must make a value judgment. He said :

"63. When a court makes this value judgment the facts will often speak for themselves. But sometimes the court may need additional background information tending to show, for instance, the likely practical impact of the statutory measure and why the course adopted by the legislature is or is not appropriate. Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the "proportionality" of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the "mischief") at which the legislation is aimed. This may throw light on the rationale underlying the legislation."

23. He went on to say that such additional background material may be found in published documents, such as a government white paper, or by a minister and any other member of either House in the course of debates. And later he said:

"66. I expect that occasions when resort to Hansard is necessary as part of the statutory "compatibility" exercise will seldom arise. The present case is not such an occasion. Should such occasion arise the courts must be careful not to treat the ministerial or other statement as indicative of the objective intention of Parliament. Nor should the courts give a ministerial statement, whether made inside or outside Parliament, determinative weight. It should not be supposed that members necessarily agreed with the minister's reasoning or his conclusions.

67. Beyond this use of Hansard as a source of background information, the content of parliamentary debates has no direct relevance to the issues the court is called upon to decide in compatibility cases and, hence, these debates are not a proper matter for investigation or consideration by the courts. In particular, it is a cardinal constitutional principle that the will of Parliament is expressed in the language used by it in its enactments. The proportionality of legislation is to be judged on that basis. The Courts are to have due regard to the legislation as an expression of the will of Parliament. The proportionality of a statutory measure is not to be judged by the quality of the reasons advanced in support of it in the course of parliamentary debate, or by the subjective state of mind of individual ministers or other members. Different members may well have different reasons, not expressed in debates, for approving particular statutory provisions. They may have different perceptions of the desirability or likely effect of the legislation. Ministerial statements, especially if made ex tempore in response to questions, may sometimes lack clarity or be misdirected. Lack of cogent justification in the course of parliamentary debate is not a matter which "counts against" the legislation on issues of proportionality. The court is called upon to evaluate the proportionality of the legislation, not the adequacy of the minister's exploration of the policy options or of his explanations to Parliament. The latter would contravene article 9 of the Bill of Rights. The court would then be presuming to evaluate the sufficiency of the legislative process leading up to the enactment of the statute. …"

24. The speech of Lord Hope, particularly at paragraphs 116 to 119, is to similar effect. He said that to suggest, as did the Court of Appeal in Wilson v. First County Trust Ltd., that what was said in debate tended to confuse rather than illuminate would be to cross the boundary into the forbidden territory of questioning the proceedings in Parliament. He said that if resort to debates for information do not cast light on Parliament's aim, this cannot and must not be a ground for criticism.
25. The other members of the House of Lords either agreed or adopted a similar approach.
26. Although the European Court of Human Rights may on occasion consider the United Kingdom legislative process, I consider that I am bound by the House of Lords approach in Wilson v. First County Trust Ltd. It is not open to me to examine the parliamentary debates with a view to concluding that Parliament did not give thought to the effect on gypsies and travellers of the removal of the relevant exemption.
27. The situation is different from that in Westminster City Council and First Secretary of State v. Morris [2005] EWCA Civ 1184, where Sedley LJ at paragraph 49 held that neither the legislature nor the executive had appreciated that the relevant provision had a discriminatory impact. Auld LJ took at similar view at paragraph 82. That conclusion was not based on a trawl of Hansard, simply on the absence of any apparent appreciation of that impact.
28. It is of common ground that I should have regard to the Carnwath Report to identify the problems with which Parliament was dealing. It is clear from the passages I have cited that the Report identified difficulties of enforcement of planning control and also difficulties faced by users of caravans.

Submissions

29. In view of the concessions it will be convenient to consider first the justification put forward on behalf of the Secretary of State.
30. Mr. Sales submits that there are substantial material differences between the impact of stationing caravans on a site and the use of an existing building for residential purposes. In most circumstances the actual construction of buildings can be the subject of enforcement action, while the stationing and use of caravans will usually happen at the same time, giving no earlier opportunity for enforcement action. He submits that a change of use of a building to residential use will usually cause little immediate environmental impact or damage, unlike the stationing of a caravan on vacant land. He accepts that, as Mr.George QC submits, these differences are not invariable. For example, on occasions a planning authority may not become aware of a building while in the course of construction. And the change of use of a building may sometimes give rise to immediate environmental damage. I accept, however, that generally speaking there will be a marked difference in the immediate environmental impact.
31. Mr. Sales submits that in framing legislation of this kind the legislature is to be accorded a significant margin of appreciation, or a discretionary area of judgment, as to how the balance between interests should be struck. Chapman is an illustration of the principle. He points to the evidence of Mr.John Stambollouian, the Head of the Planning Development Control Division in the Office of the Deputy Prime Minister, about the need for effective planning control and of public confidence in it. That requires the availability of effective enforcement action. The arrival of caravans can be accompanied, quite rapidly, by the laying of hardstanding, roadways and other development. An example was Coates v. South Bucks DC [2004] EWCA Civ 1378, per Lord Phillips MR at paragraphs 12 to 14. Mr.George QC points out that such ancillary work can itself be the subject of enforcement action.
32. Mr. Sales further submits that it was in this instance legitimate for Parliament to adopt a simple "bright line" rule in relation to dwelling houses, while leaving in place the possibility of the use of stop notices in the case of caravans, always subject to the obligation on local planning authorities under the 1998 Act section 6(1) to act compatibly with the Convention rights of gypsies and others. That, he says, is justified by the substantial material differences to which I have referred.
33. Mr. Sales submits that the requirement to cease the stationing of a caravan does not prevent the occupier from continuing to occupy the caravan as his home elsewhere. The user of a dwelling house has no such option. Mr.George QC submits that this argument ignores the severe existing shortage of sites for caravans for gypsies and travellers. The existence of a shortage is not in issue. No doubt the severity of the shortage varies from area to area and, for any particular area, varies from time to time. This answer seems to me to remove much of the force of this submission of Mr. Sales.
34. A further submission by Mr. Sales is that the proportionality of the difference in approach is underlined by the wider steps being taken by the Secretary of State to ensure suitable provision for gypsy sites. I can deal with that submission shortly. Although the evidence reveals several such steps either already taken or intended to be taken, I have no satisfactory evidence that such steps are being or will be effective, nor how soon. Both parties accept that there has in the past been and continues to be a significant shortage of such sites nationally. I am not in a position to make comparisons between the past and present extent of such problems, let alone of their future extent.
35. Mr.George QC, for the Claimant, points to the contrast between the legislation passed in 1991 and the protection given, albeit qualified and in a somewhat circuitous way, in 2004. It is common ground that in all but the most serious cases a temporary stop notice cannot be served where a residential caravan has been stationed without authorisation. Mr.George QC argues that the inclusion of such an exception points to the need for at least a similar exception in the provisions relating to stop notices. I think it is not without significance that temporary stop notices were introduced after the 1998 Act was in force.
36. Mr.George QC describes the complete removal of the caravan exemption as legislative overkill. It could have been removed, he submits, subject to qualifications such as those required for temporary stop notices.
37. As to temporary stop notices, Mr. Sales replies that a temporary stop notice is issued on the basis of a quick "but adequate" assessment of the likely consequences (as Circular 2/05 puts it). In contrast a stop notice can be issued only after the full balancing exercise required for an enforcement notice has been completed. There is thus, it is argued, a greater need to restrict the use of temporary stop notices against residential caravans.
38. There is a further important submission by Mr. Sales. He points to the provisions of the Human Rights Act 1998. Section 3(1) requires that primary legislation "must be read and given effect in a way which is compatible with the Convention rights" as far as it is possible to do so. Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right.
39. Section 183 does not require a planning authority to issue a stop notice. It permits it to do so. In making its decision it must comply with section 6(1). The remedy for breach of a stop notice is a criminal prosecution. It is not clearly established whether a gypsy could raise an article 8 defence in the event of such a prosecution, although there is in my judgment a strong argument for such a defence. A gypsy could seek judicial review.

Conclusions

40. While, as I have explained, I cannot give great weight to several of the arguments raised by Mr. Sales on behalf of the Secretary of State, I have come to the conclusion that his principal argument, that usually a change of use of a building to a dwelling will cause less immediate environmental damage than the stationing of a residential caravan, is correct. In those circumstances the "bright line" rule in relation to dwellings only is in my view proportionate and a regime such as that for temporary stop notices is not required by considerations of proportionality.
41. It is highly relevant that the difference in treatment is not between an inability to issue a stop notice on the one hand and freedom to do so without regard to the Convention rights of gypsies and travellers on the other. It is between an inability to issue a stop notice and an ability to do so after taking into account Convention rights.
42. I am not satisfied for the purposes of section 4(2) of the Human Rights Act 1998 that section 183(4) is incompatible with any Convention right.

MR JUSTICE CRANE: I am handing down the judgment of which the parties have already seen copies of the draft.

MR WILLERS: I am grateful, my Lord. Can I indicate, my Lord, that I have been handed two copies by the associate this morning of the judgment and they still have the errors which I pointed out to your Lordship's clerk on Friday, specifically paragraph 35. It may be your Lordship has an updated version, but at paragraph 35 there is reference in the last sentence to the 1988 Act, which I presume should have been a reference to the Human Rights Act 1998.

MR JUSTICE CRANE: Well, I certainly recall correcting a number of errors. That should be corrected. Thank you.

MR WILLERS: Then on paragraph 40, the last page, my Lord, I suggested that the third sentence made sense if the words "is correct" at the very end of that sentence were added. This is your consideration of Mr Sales' argument. The copy I have been handed up does not contain those words.

MR JUSTICE CRANE: What happened in relation to that was that the numbering of my paragraphs went wrong on the computer and I therefore could not identify which sentence you were talking about and I could not find which sentence it was, but I see that.

MR WILLERS: That was a suggestion I made. I was not sure if the words "is correct" should fit in, but they seem to make perfect sense.

MR JUSTICE CRANE: Yes. That is the correct sense of it and I am sorry I did not find that. I will make those corrections.

MR WILLERS: I found one other typographical error, but it is only a word that reads in the plural that should read in the singular. It is at paragraph 18. The word, I think, "excludes", halfway down the paragraph should read "exclude".

MR JUSTICE CRANE: Yes, true.

MR WILLERS: That was something I found this morning.

MR JUSTICE CRANE: Thank you.

MR WILLERS: My Lord, I appreciate your Lordship found against the claimant, but I would be asking for permission to appeal in this case. I have spoken to Mr George QC and he had two, I hope, very short grounds which I wish to put before your Lordship for consideration.

The first relates to the question of whether or not in this case your Lordship should have had regard to Hansard, or at least to the absence of any consideration of this provision before it came on to the statute books by the Members and indeed Parliament itself. My Lord, what we say in this case is that there is a realistic prospect that the Court of Appeal would come to the conclusion that in fact the court should have regard to Hansard or the lack of consideration in this matter.

MR JUSTICE CRANE: I follow that there is an interesting argument there, but would it actually make any difference in the present case, because the Act was passed well before the Human Rights Act?

MR WILLERS: It was, my Lord. That is correct.

MR JUSTICE CRANE: It is self-evident, I would have thought, that Mr Carnwath, as he then was, and Parliament were not specifically considering the relevant articles at that stage --

MR WILLERS: Yes.

MR JUSTICE CRANE: -- because it was still a gleam in Parliament's eye that the Human Rights Act would be passed, and therefore one would not expect to find any specific consideration of it. That does not of course mean that it could not now be found to be incompatible.

MR WILLERS: No.

MR JUSTICE CRANE: But I am not sure whether the absence of Parliamentary discussion of the issue, although of course they could have discussed it quite apart from the Human Rights Act, would be that significant anyway.

MR WILLERS: No. I take your Lordship's point, but the submission that I wish to make is that when coming to consider proportionality and justification for this admittedly discriminatory provision, it is important to consider whether or not Parliament has itself considered the matter and considered the ramifications of the provision, and in a case where it is quite clear that there has not been any consideration -- and I appreciate that it was pre-1988 that this matter passed through Parliament -- the discretion or width of the discretion that could be afforded to Parliament, and indeed the Bill of Rights provision which prevents one from, as it were, looking at this matter in any detail and criticising the way in which Parliament dealt with it, is a matter which should have been, and could have been, weighed in the balance in favour of the grant of a declaration of incompatibility.

MR JUSTICE CRANE: Suppose you are right; would you not in fact be needing to, in due course, ask the House of Lords to reconsider the other Wilson case?

MR WILLERS: My Lord, yes, because either this is an exceptional circumstance where the judgment in Wilson specifically does not apply, or alternatively this is a case which goes directly contrary to the judgments of the House of Lords in Wilson.

MR JUSTICE CRANE: Wilson is quite recent.

MR WILLERS: It is quite recent, my Lord, but it is in conflict, one might say, with the judgment of the European Court in Hirst, and the question must then be asked: which court should take precedence? There has been discussion of this matter in the House of Lords very recently. Indeed, Mr Philip Sales was involved in this in relation to the conflict between the case of Khazi (?) and the European --

MR JUSTICE CRANE: You say recent, but in what circumstances?

MR WILLERS: In that case, my Lord, the House of Lords were being asked to consider whether or not the Court of Appeal had been bound by the House of Lords' decision in Khazi and whether or not in fact it should have taken account of the decision in Connors, which was directly in conflict with Khazi. The Court of Appeal concluded that, by reason of the principle of stare decisis, it was bound by the House of Lords decision. When the matter came to the House of Lords, and this is an appeal in the case of Leeds City Council v Price, Mr Philip Sales, who represented the First Secretary of State, intervening, as he did in that case last week, proposed that the House of Lords should rule that the European Court of Human Rights' decision should take precedence.

What we would say in this case is that one cannot have one rule for the domestic courts and another for the European Court of Human Rights. If the European Court of Human Rights has decided that it is entitled to take account of the lack of any consideration of the question of proportionality by Parliament, then so too should the domestic courts, and the domestic courts really have a duty to keep up, as it were, with the Strasbourg jurisprudence. I think I am quoting, not verbatim perhaps, but from Mr Philip Sales' submissions which I have been privileged to have a copy of and to read.

Whether or not the House of Lords agree with Mr Sales is another matter. I think the judgments await and may not be published until the New Year. In fact I am almost certain they will not be. But the matter is open and there must in those circumstances be a realistic prospect, I would submit, that on this particular point the court ought to take, perhaps as a precedent, the decision in Hirst as opposed to the House of Lords' ruling in the Wilson case.

My Lord, that is the first point. The second point relates to what Mr George described as legislative overkill, but it is really a question of whether or not Parliament were entitled to draw a bright line or apply a bright line rule. As your Lordship will remember, Mr Sales suggested that they were in a case where there is a clear distinction between the treatment of gypsies and travellers as opposed to those who might use other buildings as a dwelling. All we say is that, given the vulnerable position of gypsies and travellers, that positive duty under Article 8 to facilitate their gypsy way of life, and given that the First Secretary of State really had to provide your Lordship with very weighty reasons and very cogent argument as to why in this case there was such a difference in treatment, and given, as it were, the narrowness of the discretion that one is entitled to afford the Secretary of State, and indeed Parliament, in an instance where there is a clear distinction on grounds of race, then there is a realistic prospect that the Court of Appeal, with respect to your Lordship, may come to a different conclusion on the question of whether or not the bright line drawn is a proportionate measure.

My Lord, your Lordship will appreciate that the claimant's case is that there is not a material distinction, or there may not be -- in many cases there is -- a really marked distinction between the impact that the stationing of a caravan might have when one contrasts it with the use of a building. What we say is this. There are a myriad of circumstances that one might encounter in relation to this provision. Clearly if one were looking at like for like, and looking at an open field with no screening and a field which is visible to all the world, then the use of a barn which has already been stationed on the land for residential purposes may well be said to be far less likely to cause an impact, or a very great impact, on visual amenity. But there are a myriad of circumstances and one could foresee very easily not just the situations put forward by Mr George; for example, an agricultural caravan being converted into a residential caravan which would, for all intents and purposes, be exactly the same situation one might envisage where a barn is used for residential purposes. One can foresee, perhaps, a caravan stationed down in a valley, hidden by trees. Why then the difference in treatment for that when perhaps a barn, whether it be in the same situation or perhaps a far more visible situation, might have an impact?

MR JUSTICE CRANE: What about though the argument that the section does not require the issue of stop notices? It provides a power.

MR WILLERS: Yes, discretion.

MR JUSTICE CRANE: And a power has to be exercised in accordance with the local authority's Human Rights obligations.

MR WILLERS: My Lord, yes.

MR JUSTICE CRANE: Now, there is a difference, is there not, between a discriminatory provision, which, as it were, lays down the law about what shall happen, and discrimination in provision of powers?

MR WILLERS: Yes.

MR JUSTICE CRANE: There must be a distinction, must there not, because of the duty, first of all, to read down the statutory provisions; but secondly for any public authority to comply with its Human Rights duties anyway in the way it exercises its powers?

MR WILLERS: Yes. My Lord, there certainly is a difference. We accept that.

MR JUSTICE CRANE: As you will understand, that in the end was quite a material matter to consider.

MR WILLERS: Yes. Your Lordship does have to take account of procedural safeguards when considering any interference, whether with Article 8 or Article 14, and that clearly was a factor that your Lordship was entitled to take into account.

What we suggest is that in this case your Lordship was expected to put too much weight on that factor and that the procedural safeguards, albeit that we accept that they are there, are insufficient for the purposes of proving to your Lordship that there are very weighty reasons why this provision is justified and this discriminatory treatment is justified.

Quite clearly there are obstacles one must jump and hurdles one must leap before one can get into a judicial review court. Funding can prove problematic. Timing is obviously of the essence. Then one has obviously to grapple with judicial discretion in any event. But I accept in a clear case certainly, and perhaps in less clear cases also, judicial review is a remedy that could afford a claimant redress in circumstances where a local authority has acted disproportionately in exercising their discretion.

Enforcement as a whole under the planning legislation is discretionary and there is no doubt about that. But what we say is that there is no reason why the legislation could not be framed in such a way that it could only ever be used in circumstances where there is a serious impact on judicial amenity, just as the temporary stop notice provisions have been drafted when coupled with the regulations that apply to them.

So what we say is that a bright line is wholly inappropriate. There are a myriad of circumstances that one might encounter as a public authority when considering whether or not to apply or use this provision, and that it would be disproportionate to give local authorities the power without some form of qualification which would really restrict the use of that power to those serious cases.

My Lord, we say that legislative overkill is a point on which the Court of Appeal could come to a different conclusion, particularly if they find themselves entitled to apply or consider what went on in Parliament when the matter was considered before it went on to the statute books. I accept that at the moment one has to await the decision in the Leeds City Council v Price case, but I do not envisage, given that that decision is awaited, going to the Court of Appeal, as it were, and asking them to consider a leapfrog appeal to the House of Lords at this stage, because I think we will have some authority on the point from the House of Lords very shortly. Thank you, my Lord.

MR JUSTICE CRANE: Thank you. I do not need to hear you. I am going to refuse permission to appeal. I am bound to say that it is not the most straightforward of cases, but on the two issues that have been raised I take the view that there is not a real prospect of success as things stand. I appreciate that there may be further decisions of the higher court which might alter this situation in the future.

So far as the Hansard issue is concerned, in the light of Wilson it does not seem to me that there is a real prospect of success, certainly in the Court of Appeal.

As to legislative overkill, which is in a sense a shorthand for the balancing act as a whole, it seems to me that in the end, not least, but not only, because of the power rather than duty consideration, to use shorthand, there is not in the end a real prospect of success on appeal. So I am going to refuse.

MR WILLERS: Thank you, my Lord. Can I ask your Lordship to indulge us as far as the timing of the lodging of an appellant's notice? Mr George had asked whether or not, given your Lordship's ruling, we can have 28 days in this case to file?

MR JUSTICE CRANE: The norm is?

MR WILLERS: Normally 14 days, according to CPR Rule 52, my Lord. Fourteen days brings us to 3rd January, my Lord. I am not going to have an opportunity to sit down and meet with Mr George until after that date.

MR JUSTICE CRANE: I am not sure --

MR WILLERS: I was going to say that I cannot foresee any prejudice.

MR JUSTICE CRANE: That is what I was going to say. It is a time of year when one has a certain amount of sympathy for that.

MR WILLERS: Thank you, my Lord.

MR JUSTICE CRANE: Would you oppose 28 days?

MS BATESON: No, my Lord.

MR WILLERS: I am very grateful, my lord.

MR JUSTICE CRANE: Particularly because it is a point of pure principle in this case now. There are no immediate steps that depend on the judgment.

MR WILLERS: No, my Lord. It will give us an opportunity to consider what your Lordship has said. I am grateful for that.

My Lord, the claimant is publicly funded. I am sure my learned friend has an application.

MS BATESON: Yes, my Lord. The Secretary of State would ask for the ordinary order as to costs in respect of the legally funded claimant, subject to the caveat that the order is not to be enforced without leave of the court. I do have some wording which I can hand to the associate, if that would be helpful.

MR JUSTICE CRANE: Yes. In principle that would seem to me to be right.

MR WILLERS: I cannot argue with that, my Lord.

MR JUSTICE CRANE: On the usual basis. Do you need a public funding determination?

MR WILLERS: I would ask for an assessment, please, my Lord.

MR JUSTICE CRANE: Yes, very well. I take it the certificate has been filed, has it?

MR WILLERS: I do not know whether or not it has been filed.

MR JUSTICE CRANE: It has. Thank you. I am grateful again to counsel for their assistance.

MR WILLERS: Thank you very much.

MR JUSTICE CRANE: If you do get leave elsewhere I shall watch with interest.

MR WILLERS: I apologise for Mr George not being present today. He was unfortunately otherwise engaged.

MR JUSTICE CRANE: No apology needed at all.