Judicial review, proportionality and s.178 direct action

Travellers caravans iStock 000010792699XSmall 164x219A senior Court of Appeal judge has rejected an argument that proportionality was a matter for the Court on an application for judicial review of a planning authority's decision to take direct action to remove travellers.

In Eastwood V The Royal Borough Of Windsor And Maidenhead (24/06/14) [2014] Ca C1/2013/3375 Lord Justice Sullivan in a renewed application has refused permission to appeal to the Court of Appeal against a decision of Mostyn J refusing to grant permission to appeal the decision of the respondent pursuant to s.178 of the Town and Country Planning Act 1990 on proportionality grounds.

On 13 November 2013 Mostyn J granted permission on one of 14 grounds 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.

The claimant sought permission from Sullivan LJ to argue that proportionality on such a challenge was a matter for the Court.

Sullivan LJ held that when a claimant seeks to challenge a decision to take direct action under s.178 of the Town and Country Planning Act by way of judicial review this was wholly different from the position under s.187B which confers on the court an original and discretionary rather than supervisory jurisdiction (see South Bucks DC v Porter and others [2003] 2 AC 558).

South Bucks had no application to the present case which relates to the Court's supervisory jurisdiction to review a decision of the local planning authority to take direct action. Action under s.178 could only be taken after an enforcement notice has come into force and not been complied with. It follows that in every case there will have been an opportunity to appeal the notice and argue that it is disproportionate. In the present case there had been an appeal in which the Secretary of State had extended the compliance period of the notice.

Sullivan LJ concluded that the lawfulness of the decision to take direct action could be challenged on conventional judicial review grounds which do not include the Court being able to form its own view on proportionality. The case of Manchester City Council v Pinnock [2010] UKSC 45; [2011] 2 AC 104 related to a different statutory context.

The claimant's renewed application for permission was dismissed.

David Lintott is a barrister at Cornerstone Barristers. He appeared for the respondent local planning authority.