Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 (22 January 2009)

Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 (22 January 2009)

The Council's decision to enforce under section 178 was not unlawful in principle, as it had considered the relevant planning harm, personal circumstances, and statutory duties. The absence of alternative sites and the need for further provision were acknowledged, but did not preclude enforcement. The Council's approach to 'need' was not unduly restrictive in law. The Council had due regard to its equality and homelessness duties, and the planning process was the appropriate mechanism for site provision. The appeal was allowed and the judge's order quashing the Council's decision was set aside.

Citation
[2009] EWCA Civ 13
Parties
Appellant: Basildon District Council; Respondent: McCarthy & Ors; Respondent: Culligan & Ors; Respondent: Coyle & Ors; Respondent: Taylor & Ors; Intervener: Equality & Human Rights Commission
Jurisdiction
England and Wales
Judgment Date
22 January 2009
Procedural Posture
Appeal (civil) / Court of Appeal Judgment Following Appeal From Queen's Bench Division, Administrative Court
Outcome
Appeal allowed; order quashing Council's decision set aside.
Legal Topics
Enforcement of Planning Control, Eviction of Gypsies and Travellers, Article 8 ECHR (right to Respect for Home and Family Life), Race Equality Duty, Disability Equality Duty, Homelessness Duties Under Housing Act 1996, Green Belt Policy, Development Plan Process
Administrative Law Planning Law Human Rights Law Equality Law Enforcement of Planning Control Eviction of Gypsies and Travellers Article 8 ECHR (right to Respect for Home and Family Life) Race Equality Duty +4 more

Case Brief

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Parties

Basildon District Council

Appellant

McCarthy & Ors

Respondent

Culligan & Ors

Respondent

Coyle & Ors

Respondent

Taylor & Ors

Respondent

Equality & Human Rights Commission

Intervener

Procedural Posture

Appeal (civil) / Court of Appeal Judgment Following Appeal From Queen's Bench Division, Administrative Court

Legal Issues

  1. 1 Whether Basildon District Council's decision to take direct action under section 178 of the Town & Country Planning Act 1990 was lawful
  2. 2 Whether the Council properly considered all relevant matters, including individual circumstances, homelessness duties, and equality duties, before deciding to enforce eviction
  3. 3 Whether the Council's approach to 'need' for Gypsy and Traveller sites was legally adequate

Ratio Decidendi

The Council's decision to enforce under section 178 was not unlawful in principle, as it had considered the relevant planning harm, personal circumstances, and statutory duties. The absence of alternative sites and the need for further provision were acknowledged, but did not preclude enforcement. The Council's approach to 'need' was not unduly restrictive in law. The Council had due regard to its equality and homelessness duties, and the planning process was the appropriate mechanism for site provision. The appeal was allowed and the judge's order quashing the Council's decision was set aside.

Court Disposition

Appeal allowed; order quashing Council's decision set aside.

Orders

  • The order of Collins J quashing the Council's decision of 13 December 2007 is set aside.
  • The Council is entitled to proceed with enforcement action under section 178 of the Town & Country Planning Act 1990, subject to ongoing compliance with statutory duties.