| PLANNING — Planning control — Breach — Local authority issuing stop notices requiring gipsies to cease using own land for stationing caravans and human habitation — Stop notice provision applying to use of residential caravans but exempting dwelling houses — Indirect discrimination against gipsies and Irish travellers — Whether differential treatment justified — Whether incompatible with Convention — Town and Country Planning Act 1990, s 183(4) (as amended by Planning and Compensation Act 1991, s 9) — Human Rights Act 1998, s 4, Pt I, Sch 1, art 14
R (Wilson) v Wychavon District Council and another [2007] EWCA Civ 52
CA: Sir Anthony Clarke MR, Moses and Richards LJJ: 6 February 2007
S 183(4) of the Town and Country Planning Act 1990, as amended, was not incompatible with art 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms in so far as it provided that a stop notice should not prevent the use of any building as a dwelling house but did not provide the same protection to caravan dwellers.
The Court of Appeal so held in a reserved judgment when dismissing an appeal by the claimant, Claire Wilson, from the order of Crane J [2005] EWHC 2970 (Admin) who, on 20 December 2005, dismissed her judicial review claim against Wychavon District Council and refused a declaration of incompatibility under s 4 of the Human Rights Act 1998. The First Secretary of State (subsequently the Secretary of State for Communities and Local Affairs) was joined as an interested party.
RICHARDS LJ said that a local planning authority which had issued an enforcement notice could issue a “stop notice” under s 183 of the 1990 Act prohibiting specified activities on the land. But s 183(4), as amended, provided that a stop notice should not prohibit the use of any building as a dwelling house. The issue was whether s 183(4) was incompatible with art 14 of the Convention in providing an exception for dwelling houses but not for residential caravans. It was not in dispute that the subsection was indirectly discriminatory of gipsies and travellers, and that the onus was therefore on the Secretary of State to give an objective justification for the rule. In matters of planning policy the court usually allowed Parliament a wide margin of appreciation but that margin was generally much smaller in relation to discrimination on particularly sensitive grounds such as gender or race. “Severe scrutiny” was called for or “very weighty reasons” required to justify discrimination on those particularly sensitive grounds: see R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 and Ghaidan v Godin-Mendoza [2004] 2 AC 557. That approach still accorded to the legislature a very real discretionary area of judgment. There were clear differences between the position of dwelling houses and that of residential caravans. Caravans could be brought rapidly onto the land in breach of planning control, with serious adverse effects on public amenity as regards visual impact and other forms of environmental harm. On the other hand, a stop notice in respect of the use of land for siting a residential caravan would not necessarily prevent the occupier from continuing to occupy the caravan as his home. His Lordship concluded that the differential treatment was justified. There were cogent reasons for exempting dwelling houses but not residential caravans. Nor was the absence of a qualified exemption (such as that available in respect of temporary stop notices) disproportionate.
MOSES LJ gave a concurring judgment and SIR ANTHONY CLARKE MR agreed with both judgments.
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