Moving on

Gypsies and travellers might have been forgiven for thinking the Human Rights Act 1998 (HRA) was unlikely to advance their position. In appeals against refusals by local planning authorities (LPAs) of planning permission to establish caravan sites (under s 78 of the Town and County Planning Act 1990) the courts had held the planning inspectorate or the Secretary of State dealing with the appeal should take the appellant's Convention rights into account: see Britton v SoS for the Environment [1997] JPL 617. However, the European Court of Human Rights, having determined the UK planning system was Convention compliant in Bryan v UK (1996) 21 EHRR 342, rejected violation applications by gypsies in Buckley v UK (1996) 23 EHRR 101 and in the series of cases headed by Chapman v UK (2001) 10 BHRC 48. This was on the basis that Art 8 did not provide for a right to a home. In any event, the proviso at Art 8(2) applied. The UK was therefore entitled to determine that striking a fair balance between the 'rights and freedoms of others' to environmental benefits and the gypsies' right to respect for their home (their caravan) meant that maintaining the countryside outweighed the need of gypsies for a secure site for their caravans (see paras 75/6 and 88 in Buckley and paras 92/114 Chapman). This was disappointing for those concerned with gypsy rights, as between Buckley and Chapman the legislative position of gypsies had worsened. The duty on LPAs to secure accommodation for gypsies residing in or resorting to their area (Pt II of the Caravan Sites Act 1968) was repealed and the draconian removal order and direction powers under ss 77-80 of the Powers of Criminal Courts Act 1994 were introduced. These enabled LPAs to remove gypsies from any land or highway in their area, including land not in the authority's ownership on which they were residing. As R v Lincolnshire CC, ex p Atkinson [1995] 8 Admin LR 529 and subsequent cases showed, a decision to exercise those powers was challengeable by judicial review, and the authorities had to take into account 'considerations of humanity' before exercising them. South Bucks DC v Porter To the dismay of some and the delight of others, the courts have, to some extent, lightened the operation of the law on gypsies by application of the HRA. The most spectacular example so far has been the decision of the House of Lords in Wrexham County BC v Berry; South Bucks DC v Porter; Chichester DC v Searle [2003] UKHL 26; [2003] 3 All ER 1; (2003) 147 SJ 626, 30 May. The House considered three appeals by LPAs concerning the exercise of the court's powers to grant injunctions restraining breaches of planning control under s 187B of the Town & Country Planning Act 1990. The injunctions in these cases required the gypsy defendants and their families to vacate land they owned and which they occupied in their caravans as their homes, albeit without planning permission to do so. Before the HRA, two Court of Appeal decisions (Hambleton DC v Bird [1995] 3 PLR 8, Mole Valley DC v Smith [1992] 3 PLR 22) had held it was not open to the court to consider the merits of the LPA's decision (or of the Secretary of State/planning inspector if there had been an appeal) that the gypsies' occupation was in breach of planning control. This included issues such as the need for local and national gypsy sites, availability of alternative accommodation, and the hardship caused by the decision which would also have been considered. The court's role was confined to seeing whether there had been any change of circumstances since those decisions and, in the light of that, whether it was 'just and proportionate' to grant the injunction (Tandridge DC v Delaney [2000] 1 PLR 11). The narrowness of the court's inquiry meant it was rare for an injunction to be refused. However in South Bucks, the House of Lords agreed with the Court of Appeal that the jurisdiction of the court was original, ie for itself to exercise, and not merely supervisory of the LPA/Secretary of State's decisions and dismissed the LPAs' appeals. The judgment of Simon Brown LJ was expressly approved. He said ([2001] EWCA Civ 1549, para 32): 'Whatever may have been the position before the 1998 Act came into force'¦ now certainly it is for the court itself to address the issue arising under Art 8 (2) and it must accordingly reach its own decision upon whether the gypsies removal from site is proportionate to the public interest in preserving the environment. The court must decide that removal on pain of imprisonment is necessary for that end and this would not impose an excessive burden on the gypsy.' Simon Brown LJ said a local authority decision is to be respected, as it is a democratically accountable body. The judge was not required or even entitled to reach his own independent view of the planning merits of the case. But he should not grant an injunction unless he would be prepared if necessary to commit the defendant to prison for breach of the order, having considered all questions of hardship for the defendant and his family if required to move. He concluded: 'Previous planning decisions will always be relevant; how relevant'¦ will 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 considerations reached on land use and environmental issues, and whether the defendant properly took the opportunity to make his case for at least a temporary and permanent planning permission' (para 38, CA). '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 gypsy's private life and the retention of his ethnic identity '“ are at stake' (para 41, CA). The House of Lords considered it 'questionable' whether the previous Court of Appeal decision had been correct even before the HRA, but since then it was clear an injunction could only be granted if the court considered it proportionate to do so. As the injunction is the ultimate in (or in certain cases the primary means of) planning control, the importance of this decision cannot be exaggerated. Moreover, although the system is plan led, the case emphasises consideration of the human factor. This has wider implications than gypsy cases. Alternative accommodation A frequent issue in gypsy planning cases is whether there is available alternative accommodation to the site in question, and offers of housing (refused by the gypsy) are relied upon. In Thomas Clarke v SoS ETR [2001] EWHC Admin 8000 the High Court held, by reference to the HRA, that where a gypsy states he is averse to conventional housing, it would be irrelevant to take into account his refusal of an offer of such in determining a planning appeal. Burton J said: 'If such be established then'¦ bricks and mortar if offered, are unsuitable, just as would be the offer of a rat infested barn. It would be contrary to Arts 8 and 14 to expect such a person to accept conventional housing' (para 34). The judgment has subsequently been upheld in the Court of Appeal ([2002] EWCA Civ 819). On a similar basis, the High Court recently quashed a decision by a local authority to evict a gypsy who was trespassing on its land, but who had made an application to the local authority for accommodation as homeless under Pt VII Housing Act 1985 and had been offered a house (R (Price) v Carmarthenshire [2003] EWHC 42 (Admin). Protection from eviction In other areas the HRA has not resulted in any improvement in the position of gypsies. Gypsies on sites provided by a local authority under the 1968 or 1960 Acts have limited protection from eviction. They can be evicted on four weeks' notice, unlike occupiers under the Mobile Homes Act 1983 or secure tenants under the Housing Act 1985 who can (in most instances) only be evicted on proof of grounds and that it is reasonable so to do. The High Court has held that this distinction does not offend Art 8 of the Convention or the non-discrimination provision of Art 1 (Somerset CC v Isaacs [2002] EWHC 1014 (Admin) and R (Albert Smith) v LB of Dagenham [2002] EWHC (Admin) 2400). This was on the basis that it was justifiable to draw a distinction between gypsies, who were nomadic, and the other occupiers, who were not. The Court of Appeal has effectively upheld both cases in refusing permission to appeal in Smith [2003] EWCA Civ 385. Conclusion The HRA has radically altered the court's approach to injunctions under s 187B of the 1990 Act and has assisted the court in relaxing the definition of gypsy so far as planning cases are concerned. It has also affected planning cases (and to some extent possession cases) in which availability of alternative accommodation is an issue. It has not led to any enhancement of gypsies' rights so far as security on official sites is concerned. One area, as yet unexplored, is whether a defence based on Art 8 and s 7 of the HRA can be mounted in the court hearing summary possession proceedings, instead of by way of judicial review. In such proceedings the court could be invited to make the relevant findings of fact (not possible in judicial review when the court takes the facts as those before the local authority). On this and on the other areas raised in this article further developments may be close.