Proportionality is not for the Court on an application for judicial review of a local planning authority’s decision to take direct action

01 Jan 2018

Planning and Environment

Eastwood v The Royal Borough of Windsor and Maidenhead (10/05/16) [2016] EWCA Civ 437 Arden, Floyd, Sales LJJ

David Lintott successfully appeared for the Respondent local planning authority. The Court of Appeal has dismissed an appeal made by Jane Eastwood in which it was argued that proportionality was for the Court on a judicial review claim in which an applicant sought to challenge the decision of a local authority to take direct action, pursuant to s.178 of the Town and Country Planning Act 1990, to remove travellers from land.

The Appellant had sought to judicially review a decision of the Royal Borough of Windsor and Maidenhead to take direct action to remove travellers occupying a site in the borough after the expiry of the compliance period on an enforcement notice.

In a decision in which Sales L.J. gave the leading judgment with which Arden and Floyd LJJ agreed, the Court of Appeal, in dismissing the appeal, held:

(1) It was clear from the evidence that the Council did not fail to accord proper weight to the decision of the Secretary of State, in dismissing an appeal against the enforcement notice, to allow the Appellant 18 months to comply with the notice (paragraph [38]);

(2) The Appellant had failed to show that it was irrational for the Council to decide that enough was enough and that the time had now arrived at which it would be reasonable and proportionate in light of all relevant interests to proceed to implement the enforcement notice, the validity of which had been upheld on the appeal to the Secretary of State. (paragraph [41])

(3) A decision to enforce planning controls is a matter of planning judgment in which a significant degree of discretion should be allowed to the local planning authority. The position under s.178 thus differed from that under s.187B which section was the subject of the decision in the case of South Bucks District Council v Porter [2003] UKHL 26; [2003] 1 AC 558. The South Bucks case was concerned with the exercise of jurisdiction by a court to grant injunctive relief pursuant to section 187B of the TCPA. By contrast, in the present case the court was not being asked by the local planning authority to exercise its (the court’s) own powers to grant injunctive relief in support of enforcement action; it was the local planning authority which is the relevant public authority deciding how it should act in the exercise of enforcement powers which have been directly conferred upon it by Parliament under section 178 of the TCPA. In deciding how to exercise its own powers under section 178, the Council has a discretion. It acts lawfully if its decision falls within the proper scope of that discretion, and in the present context it will have done so if its decision is a rational one. In such a case the necessary proportionality assessment had already been carried out by the Inspector and the Secretary of State on the enforcement notice appeal. (paragraphs [42]-[43])

(4) The Court was not persuaded that it was open to the Appellant to advance a submission on the appeal that a more generous rationality standard should have been applied as it fell outwith the single ground on which Mostyn J gave permission to the appellants to seek judicial review. But even if the submission were open to her it would have been rejected. The judge was correct to regard the decision of the Council as one turning essentially on matters of planning judgment, weighing up as it had to do the desirability of acting promptly to end the harm to the Green Belt and the public interest against the interests of the occupants of the land, assessed in the context where those interests had already been brought into account by the Inspector and by the Secretary of State in his decision to uphold the enforcement notice with some additional time for compliance, which had expired by the time of the Council’s decision. The judge was therefore correct in allowing the Council as local planning authority significant latitude in application of the rationality standard, in an entirely conventional way. The case was very far from the context of the case of Kennedy v Charity Commission [2014] UKSC 20; [2015] AC 455 and called for no adjustment of the ordinary rationality standard of the kind discussed in that case. (paragraphs [45]-[46]).

A copy of the transcript can be found here.