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Stop notices

Gypsies - Art 14 of the ECHR

R (on the application of Wilson) v Wychavon District Council
[2007] EWCA Civ 52

Summary

The issue in this case was whether s.183(4) of the Town and Country Planning Act 1990 Act was incompatible with Article 14 of the European Convention on Human Rights. The section permits stop notices to be served for residential caravans but provides an exception for dwelling houses. It was contended that it discriminated against Romany Gypsies and Irish travellers.

The Secretary of State accepted that Art.14 was engaged and that s.183(4) of the 1990 Act was indirectly discriminatory in its effect. The question was whether the Secretary of State had discharged the onus of justifying the provision. The discriminatory impact could only be justified if it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

Discussion

In this case, the aim was the protection of the environment and harm to amenity. The Court considered that there were clear differences between the positions of dwelling houses and residential caravans, both in respect of the harm that they were in general likely to cause and as regards the effect of a stop notice on the ability of the occupiers to remain in their home. The Court found that there was a cogent case for a simple bright-line rule exempting the use of a building as a dwelling house from the stop notice regime.

Decision

Accordingly, the Court held that although the Town and Country Planning Act 1990 s.83(4) did indirectly discriminate against Gypsies, it could be objectively justified by the legitimate aim of protecting the environment. Therefore the provisions regarding stop notices were not incompatible with Article 14 of the ECHR. Richards LJ at para 68:
    "There are clear differences between the position of dwellinghouses and that of residential caravans. Caravans can be brought rapidly onto land in breach of planning control, without the possibility of prior enforcement action; and such action can have serious adverse effects on public amenity, as regards both visual impact and other forms of environmental harm. The view expressed in the Carnwath report, on the basis of which the legislature acted in removing the previous exemption, was that the potential damage caused by unlawful caravan sites could be considerable. The continuing validity of that view is supported by evidence filed on behalf of the Secretary of State in the form of a witness statement made in December 2004 by Mr John Stamboullian, who was at that time Head of the Planning Control Division in the Office of the Deputy Prime Minister. He states at para 19:

      'Evidence has shown that unauthorised development to establish a residential caravan site can be rapid, planned and systematic. In a short space of time, caravans can be moved onto the land (for which planning permission for the siting of residential caravans would be required), hardstanding and roadways put in place, tarmac laid, hedges removed, services including water and power connected. As this kind of development proceeds it can impose increasingly long-lasting and in some cases irreparable damage. Once the development is complete, continued occupation can pose an ongoing serious impact on highway safety, to wildlife and habitats and in some cases to community related issues, such as the effect on educational or health facilities. The reality of the situation is that if the breach of planning control is not dealt with effectively at the earliest stage, for example by a stop notice, it often becomes increasingly difficult to remedy the breach later. This may be particularly important in terms of environmental damage, for example by the laying of roads, or the removal of hedgerows.'

    The facts of the present case provide a good illustration of the problem. So do those of Coates v South Bucks District Council [2004] EWCA Civ 1378. In such cases the need for urgent enforcement action through the issue of a stop notice may be very great - even if, in practice, stop notices are frequently not complied with despite the criminal sanctions attaching to them.

    On the other side of the balance, the issue of a stop notice in respect of use of land as the site for a residential caravan will not necessarily prevent the occupier from continuing to occupy the caravan as his home. In complying with the notice, the occupier may well be able to move the caravan somewhere else without ceasing to reside in it. That is not to deny the potentially serious effect of a stop notice in such a case or its potential to interfere with the article 8 rights of occupiers of caravans; but it does provide a further material point of distinction between residential caravans and dwellinghouses."

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