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End of the road

Basildon District Council v McCarthy
[2009] EWCA Civ 13


This was a successful appeal against the decision of Collins J. to allow a judicial review application against the decision of Basildon District Council to take direct action under s178 of the Town and Country Planning Act 1990. The judge had erred in holding that consideration had not been given to the needs of the individual families involved.


The council sought to clear the site, which was occupied in breach of planning control by travellers and gypsies, of caravans and hardstanding. As acknowledged by them they had come to the end of the road in terms of the planning process, having failed to obtain planning permission on the site and having had enforcement notices requiring them to cease the use of the land upheld on appeal. Collins J had allowed their claim for judicial review finding, amongst other matters, that the council had not had sufficient regard to need, not considered the individual families adequately and had not had proper regard to the homelessness duties under the Housing Acts. The council appealed.


The Court of Appeal allowed the appeal relying on its recent decision in O’Brien v South Cambridgeshire DC [2008] EWCA Civ 1159 to support its finding that the council had not erred in respect of its approach to the decision making process in respect of the issue of alternative sites.

The council was not required to bypass the development plan system to try to find other sites before taking direct action. The development plan process was the way to identify alternative sites and this was likely to take time. Furthermore, the appeal court held that the council was entitled to rely on the planning history when reaching its decision. The appeal court also considered that matters relating to housing duties did not arise at the stage that the decision to take direct action was made, and that it could not be a pre-condition to taking action. In respect of the individual circumstances, the appeal court found that adequate consideration had been given by the council to this matter prior to taking action.


Pill LJ at para. 70:
    "The procedure which has been followed, the refusal of planning permission, consistently supported by the Secretary of State, the taking of enforcement action under section 172 of the 1990 Act, and the flagrant disregard of enforcement orders upheld by the Secretary of State, can legitimately form the basis for a decision to take action under section 178 of the 1990 Act. In taking that decision, the persistent breaches both of planning control and the criminal law are factors which may be taken into account. The council was not required to act as if the decisions on the enforcement notices had not been taken."


This is yet another decision that has reached the Court of Appeal in this area of planning law. The past year has seen numerous important decisions addressing the issues relating to planning control and gypsies and travellers. The decision again demonstrates that current government guidance is not intended to prevent the enforcement of planning control in respect of gypsies and travellers. Where the decision making process is lawful the use of direct action under the Town and Country Planning Act 1990 is likely to withstand challenge.

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