R (Eastwood) – v – the Royal Borough of Windsor and Maidenhead [2016] EWCA Civ 437, 10 May 2016

In this case, applications for permanent and temporary planning permission for a Gypsy/Traveller site in the Green Belt were refused but 18 months was given for compliance.

An attempt to challenge the use of direct action powers under Town and Country Planning Act 1990 Section 178 especially concentrating on the failure of the local authority to identify alternative locations within the 18 months compliance period, was unsuccessful.

Sales LJ stated:-

18.       On a fair reading of the Inspector’s report and the Secretary of State’s decision letter, all that the allowance of a period of 18 months for compliance with the enforcement notice was intended to achieve was the allowance of a reasonable period for ‘alternative accommodation and site provision arrangements to be progressed’…that is to say, it was a period of grace to give the occupants a reasonable opportunity to make alternative arrangements…The 18 month period would also avoid the immediate adverse consequences for the occupants if they had to leave without having a reasonable opportunity, on fair notice, to make suitable arrangements: hence the Inspector’s reference…to avoiding ‘the adverse consequences of short-term displacement’. Contrary to the contention of Mr Cottle [who acted for the Travellers], in the context of the Report as a whole this plainly did not mean that the Inspector thought they could only be removed once an appropriate alternative site had been found…

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 37.       First, Mr Cottle submitted that the Council had made an irrational decision in April 2013 because it failed to take properly into account what he maintained was the fundamental premise of the Secretary of State’s decision in 2011 to uphold the enforcement notice, namely (he says) that removal of the caravans and their occupants from the land should only take place when a suitable alternative site had been identified for them to go to.

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 41.       The appellant has 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…

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 43.       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. As already pointed out above, the Council’s decision was a rational and lawful one…

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 46.       ….The Judge was correct to regard the decision for 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 an application of the rationality standard, in an entirely conventional way.