WELLS v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza;Simon Brown
The applicant, Mr Jesse Wells, is a British national who was born in 1966 and lives in Marsh Village, Buckinghamshire. He was represented before the Court by Mr J. Browne, a solicitor practising in Chesham. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant, his wife and five children, are gypsies. He bought land known as Ashbrook Farm and moved onto it with three caravans on 10 April 2002. Prior to that date, they had lived in caravans at Stables Farm, an established gypsy caravan site located some 1.2. kilometres to the south of his land. On 26 April 2002, Wycombe District Council (“the Council”) served an enforcement notice requiring him to remove the caravans and cease using the land, which had been used for agricultural purposes, as a caravan site. The applicant appealed. By decision dated 18 December 2002, following a hearing and inspection of the site, the Inspector appointed by the Secretary of State dismissed the applicant’s appeal. He found that the development was prominent and harmed the rural character of the surroundings. He noted that there was a general shortfall of sites for gypsies in the county but that there were two other privately owned sites in the vicinity, one owned by the applicant’s father (Stables Farm) and the other by his brother, where stationing of caravans had been allowed and he considered that the possibilities of reorganising or extending the residential parts of these sites had not been fully explored. In particular, permission had been granted for a replacement dwelling on Stables Farm and when his parents moved into that house more space would become available. In the circumstances therefore the applicant’s need for an additional site at Ashbrook Farm had not been made out. The Inspector did not find the enforcement disproportionate as regarded Article 8 but gave one year to comply with the condition of ceasing occupation and removal of the caravans to allow the applicant to explore other options. The applicant did not appeal against this decision to the High Court. On 25 March 2004, the Council laid an information against the applicant which alleged that he had failed to comply with an enforcement notice. On 28 September 2004, the applicant was tried by the Central Buckinghamshire Magistrates’ Court. They dismissed the information finding the applicant not guilty as he “had done all that he could reasonably be expected to do to find suitable accommodation” for the purposes of the statutory defence under section 179(3) of the Town and Country Planning Act 1990. The Council appealed against that decision by way of case stated having requested that the magistrates pose the following question for the opinion of the High Court: “whether in light of the evidence the steps that the Justices found the <applicant> had taken to comply with the enforcement notice constituted, in law, a valid statutory defence under section 179(3) of the Town and Country Planning Act 1990.” The case stated recorded the following findings of fact by the magistrates: ... f) The [applicant] continued to reside at Ashbrook Farm. g) The [applicant] previously resided at a site belonging to his father. Due to family difficulties he and his family had to leave that site. He was unable to return. h) The [applicant’s] children attend school locally. It is in their best interests to remain at their respective schools. i) The [applicant] made approaches to local farmers to buy land, confirmed in letters of June and September 2004, and was unsuccessful. The [applicant] made enquiries of, and has registered with, local property consultants. These enquiries as to available local land also proved unsuccessful. j) There is a shortfall of gypsy accommodation in the Wycombe area and consequently other alternative local sites were not available. The [applicant] did not look for any gypsy accommodation outside the Buckinghamshire area. k) The [applicant] approached the [Council’s] housing department for alternative accommodation before purchasing Ashbrook Farm. As he is the owner of a mobile home he was not deemed to be homeless and therefore none was available. l) The [applicant] was willing to change his culture and consider living in a house with his family. m) The sale of the [applicant’s] mobile home would have rendered him intentionally homeless and local authority accommodation would not have been available. He was advised by the [Council] to go to letting agents. n) The sale of the [applicant’s] mobile home would have realised him sufficient funds to enable him to rent accommodation but only for a short period and therefore he did not go to any letting agents or attempt to obtain rental accommodation. Once the funds realised were used the [applicant] the applicant would not be able to maintain rental payments. o) The sale of the mobile home would have realised in the region of £10,000. p) The [applicant] was in work. On 23 May 2005 Mr Justice Newman allowed the Council’s appeal and remitted the case to the magistrates with a direction that they convict the applicant of the offence. He noted the findings of fact by the magistrates but found that the magistrates’ application of the defence under section 179(3) was flawed: “A defence under section 179(3) is not established by demonstrating that the reason for non-compliance with an enforcement notice is that no alternative site had become available, where the activity in question could be continued. On that basis, a whole range of activities, which take place contrary to planning control, and are commonly enforced against, could continue simply because nowhere else was available for them to be carried on. For example, the use of land for the whole range of industrial and commercial activities to which land can be put, could be continued, despite the service of an enforcement notice, so long as the owner or user demonstrated that an alternative site, where the activity could continue, had not become available. The enforcement procedures, essential to proper planning control, would be wholly undermined. It can also be seen that the magistrates placed some weight upon an approach to the [Council’s] housing authority before he purchased Ashbrook Farm. It is not clear why the position prior to ownership of Ashbrook Farm was relevant but it seems likely the magistrates concluded that the [applicant’s] ownership of a mobile home meant that he would not be regarded as "homeless". The service of an enforcement notice requiring the [applicant] and his family to leave the site where they were living obviously gave rise to facts enabling the eligibility of the family (including the [applicant]) for the provision of housing accommodation provided by the local authority to be considered by the housing department of the [Council]. There had been no application to the housing authority by the [applicant] and his family after the service of the enforcement notice. Had the magistrates realised the true position I doubt that they would have come to the conclusion that the [applicant] had done everything reasonably possible to find alternative accommodation. In the course of argument on the appeal and in response to the court, counsel for the [Council] accepted that the position of the [applicant] and his family arising from their need to comply with the enforcement notice, meant that the issue was fit to be taken up by the housing department... as soon as any application was made to it.” He referred also to previous cases on the section 179(3), noting that it had been held in Brockham (Kent County Council v. Brockham 1996 1 PLR): “that personal circumstances were admissible to establish incapacity, not that personal circumstances were admissible to establish an excuse or explanation for non-compliance or that compliance would give rise to particular hardship. It is clear the court was holding that for a defence to be made out, it must be established that, despite doing everything that could be reasonably expected, the defendant was nevertheless incapable of complying with the notice. Simon Brown LJ ... foresaw the risk that arguments on the basis of impecuniosity could lead to magistrates upholding defences, which were outside the contemplation and true meaning of the statutory defence... In my judgment Brockman provides no support for the factual conclusion reached by the magistrates in this case being treated as a defence. The <applicant> was not incapable of leaving the site. Whether or not he had an alternative site to go to, he was physically able to leave the site with his family. Further, as to his financial circumstances, although in selling the mobile home, he might only be able to provide himself with a home for a limited period of time, estimated at ten months, the hardship that that created for himself and his family did not establish that he was incapacitated by any “impecuniosity”. His “impecuniosity” did not prevent him from leaving the site, but plainly the requirement for them to go was capable of creating a measure of hardship. It has to be said, in light of their homelessness and the statutory duty upon housing authorities, it is likely to be substantially less than the magistrates had in mind... For these reasons...I am satisfied that the magistrates erred and that this appeal must be allowed.” Mr Justice Newman refused to certify the case as involving a point of law of general public importance for the purpose of further appeal to the House of Lords. In July 2005 the applicant was convicted by the magistrates and fined GBP 1,500 and ordered to pay costs. Meanwhile, on 21 June 2005, the applicant was granted by an inspector on appeal planning permission subject to conditions to change the use of the site to a gypsy caravan site for one family occupying no more than three caravans. The applicant and his family remain on the site on the authority of that permission. Section 179(3) of the Town and Country Planning Act 1990 provides: “In proceedings against any person for an offence under section (2) <failure to comply with an enforcement notice>, it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.” Previous cases concerning the application of his defence include the following. In Kent County Council v. Brockman [1996] 1 PLR 1, the High Court (Divisional Court) refused the prosecuting authority’s appeal by way of case stated from a magistrates court’s decision to acquit the defendant on the basis of the defence. Buckley J held that the magistrates were correct in taking the individual’s personal circumstances into account and that where the individual was genuinely incapacitated, he did not have to show that he done something to try to comply with the enforcement notice. In that case the fact that the applicant was incapacitated physically by reason of a heart attack and was aged 65 living alone, could not do the work himself or pay for it, was sufficient to make out the defence. It was emphasised that magistrates should be fairly rigorous an proof of incapacity. In R. v. Beard [1997] 1PLR 64, the Court of Appeal dismissed the applicant gypsy’s appeal against conviction for breach of an enforcement notice in failing to quit the land which he occupied in his caravans. In dismissing the contention that the applicant had done everything he could be expected to comply by searching for alternative accommodation without success, the court found that the alleged facts relied on did not relate to any lack of capacity or inability to comply with the enforcement notice. Lord Justice Hobhouse noted that the system of planning controls, which existed in the interests of the community as a whole, was entrusted to democratically elected local authorities with rights of appeal to ministers accountable to Parliament and aggrieved applicants had rights of recourse to the courts under statute or by way of judicial review, with scope on appeals from planning decisions for public hearings at which parties and interested members of the public were entitled to present their views and evidence. It was at that stage that the fact that the applicant was a gypsy and that there might be special needs of the applicant or other gypsies for camp sites might justify the grant of a planning permission which would be refused in the absence of those special considerations. Against that background, he stated that the meaning of section 179(3) was “... clear and unambiguous. Where it is within the power of the owner of the land to comply with the notice without the assistance of others, no question of a defence ... arises. Before a defence can arise... the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise. Thus, if there are other persons in occupation of the land, it is enough if he has done all that he could reasonably be expected to do to secure that they comply with the notice. If compliance would require, for example, some engineering work and the owner is not himself able to do that work and does not have the resources to employ another to do it, he will have a defence... .. “Sub-section (3) is not concerned with a balance of social factors. It is not concerned with policy issues as arise in relation to the circumstances in which gypsies live. It does not enjoin the court to accept a defence on the footing only that it concludes that it would be a good thing if the defendant were not required to comply. Indeed it is not at all concerned with the defendant’s wishes; only with his capacity. It is there to protect an individual who shows that in reality and common sense he is unable to comply with the obligations imposed on him by an enforcement notice as owner. ... The legislative scheme allows for the legitimate rights and expectations of gypsies to be taken into account at the appropriate stages of the procedure, including the stage of whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with Article 8. The subject matter of section 179 is failure to comply with a lawful enforcement notice... There is nothing in the present case which requires the appellant to desist from following a nomadic life or abandoning a communal existence with other gypsies.” In R. v. Wood [2002] JPL 219, the Court of Appeal allowed the appeal of a gypsy against conviction for breach of an enforcement notice requiring him to remove his caravan from his land. It held that the judge had been wrong to rule that there was no defence on the facts to be left to the jury, stating that it was for the jury to decide whether the defendant had done all that he reasonably could to secure compliance with the notice and that while there was little or no merit in the grounds advanced by the applicant (e.g. whether he would be able to convince his family to move even if he left himself), the issue should be determined at a retrial. In R. v. Clarke [2002] JPL 1372, the Court of Appeal rejected the appeal against conviction of a gypsy who had failed to remove his caravans, finding that the considerations in Beard still applied as they had been endorsed in Wood which had been decided after the Human Rights Act 1998 had come into force. Mr Justice Cooke rejected the contention that the tribunal of fact was entitled to consider before convicting, in addition to whether or not he had done everything reasonable to comply in his personal and financial circumstances, whether the alleged interference with the defendant’s right to respect for his traditional way of life was justified under Article 8 § 2 of the Convention. “The question of the rights of the applicant, in relation to home and family life, was fully considered at the earlier stage of the planning process, by the decisions of the planning authorities and the two appeals therefrom, when the inspectors decided against the applicants...”