CO/5225/2005 
Neutral Citation Number: [2008] EWHC 987_2 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 9 May 2008
 
B E F O R E:

MR JUSTICE COLLINS 

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MCCARTHY 
Claimants 
‑v‑
BASILDON DISTRICT COUNCIL 
Defendant 
EQUALITY AND HUMAN RIGHTS COMMISSION 
Intervener 
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Mr A Offer (instructed by Davies Gore, Lomax) appeared on behalf of the Claimant
Mr David Elvin QC and Mr Paul Epstein QC and Mr R Taylor  (instructed by legal Department, Basildon District Council)  appeared on behalf of the Defendant
Mr Robin Allen QC and Mr Marc Willers (instructed by Legal Officer to EHRC) appeared on behalf of the Intervener
Post Judgment Discussion
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JUDGMENT
1.	MR JUSTICE COLLINS:  I am grateful to counsel for the typographical error spotting in the judgment that has been handed down.  
2.	For the reasons given in the judgment, I have decided that the decision of the council must be quashed.  Broadly speaking, it is because in my judgment there was a failure to have proper regard in the final decision that was made to a few matters, namely (1) the need for individual consideration because the enforcement action is against individuals on individually owned plots of land and there was a lumping of everyone together.  It may be in the end it makes no difference.  But individual claimants might have a particular problem ‑ with their health or with their children's education or whatever ‑ that justifies a conclusion that in their individual cases it may be disproportionate to remove them immediately.  
3.	In addition there is the question of homelessness.  The council will, once it decides to evict, threaten them with homelessness.  That will give them the right to apply to the council so that the council has to house them.  There may be problems in finding suitable accommodation if, in some cases, there is a genuine consideration that bricks and mortar would   not be suitable accommodation.  I think that the consideration of need was put on too narrow a basis.  
4.	Finally things have moved on since the decision last December.  There has been a report which suggests it is possible that there may be a need for Basildon to find further authorised sites.  The major problem with these gypsy cases is that there are no authorised sites for them to go to.  If they are evicted the only possibility is roadside camping.  
5.	Having said all that, I want to draw attention to what I said at the end of my judgment.  That is that the claimants cannot remain where they are.  At best, they will have a  temporary possibility of remaining but the time is bound to come ‑ and come fairly soon ‑ when they will have to leave.  They must appreciate, as must all travellers and gypsies, that the law will not tolerate developments without planning permission being made ‑ particularly in the Green Belt ‑  and will be likely to uphold enforcement action provided of course individual circumstances have all properly been taken into account.  If there is a further decision to make use of Section 178 and enforce the removal and that decision has had proper regard to everything to which regard should be had, I doubt it will be possible for any of those affected to assert that there is an error of law.  They must realise that they will have to go.  
6.	The only small proviso I make ‑ though I doubt whether in the timescale it is one that is necessary ‑ is I would have thought that if the council reconsider and reach the same conclusion then they should at least take no action until the end of the present school year so the children's education is not affected to any greater extent than is necessary.  On the timescales I doubt if that is going to make a great deal of difference because I think term ends at the end of next month.  Subject to that, these claims succeed.
7.	MR OFFER:  My Lord, I think the court received yesterday some four orders in draft.
8.	MR JUSTICE COLLINS:  Yes.  They seem to be much the same.
9.	MR OFFER:  They are.  The reason there are four different ones is because these cases have never formally been joined.  They were heard together as a roll‑up, but technically they are individual cases.
10.	MR JUSTICE COLLINS:  You are quite right.  Yes.  They are each separately numbered.  Everyone agrees with those orders.
11.	MR WILLERS:  Yes. 
12.	MR JUSTICE COLLINS:  I did wonder if I might make the Commission ‑ ‑ to give you benefit of paying for one day.  Frankly I do not think intervention was of the slightest benefit.  What they could have done was usefully to have put it in writing.
13.	MR WILLERS:  I mean to dissuade you.
14.	MR JUSTICE COLLINS:  It is only a thought.  I can see that it would give rise to considerable opposition and yet further costs in arguing it.  I simply fire that warning shot across its bows because it did take up overall about a day of the court's time.  With the greatest respect to Mr Allen, I did not find it, in the end, particularly helpful as will be clear from the reasons I have given.
15.	MR WILLERS:  We appreciate that.  I will take back those comments to the Commission.  I have discussed the judgment with Mr Allen.  He can see your views on the matter.  I say no more about it than that.
16.	MR JUSTICE COLLINS:  I think all that is necessary is a warning shot across their bows.  Yes, in writing would have been helpful, but I do not think the argument added anything quite frankly.
17.	MR WILLERS:  I think that at the time the argument was made there was no decision in Baker.
18.	MR JUSTICE COLLINS:  True, but the Court of Appeal decision was something that perhaps would have helped although there was the decision from Mr Justice Ouseley which was to the same effect and was, in my view, completely right.
19.	MR WILLERS:  There was.  Although that decision was not reached with the benefit of any submissions by the Commission.
20.	MR JUSTICE COLLINS:  Yes, perhaps I am being a bit harsh on you.
21.	MR WILLERS:  It was a disability discrimination point although clearly the gender point had no relevance at all.  I hope we have made that clear in submissions.
22.	MR JUSTICE COLLINS:  I think I did.  Thank you all.  I am sorry that it has taken a bit of time to get this judgment out.  You can understand why.  I am grateful for the reduction of the Lever arch files.  Would everyone at the Bar take into account what I said in relation to paper that floods this court.
23.	MR TAYLOR:  You will recall that Mr Elvin explained on the first day of the hearing that we attempted to agree a form of order.
24.	MR JUSTICE COLLINS:  Yes.
25.	MR WATKINSON:  Only two or three days before the hearing.
26.	MR JUSTICE COLLINS:  For the future ‑ it is something the court is getting concerned about ‑ apart from anything else, we do not have great storage space.  If we get landed with loads and loads of files, where do we put them?
27.	MR TAYLOR:  My Lord, I have an application for permission to appeal.  You have found against the defendant on the three grounds you outlined this morning; need, the homelessness duty point and failure to consider individual circumstances.  It is my sorry task to submit to you that in relation to each of those three grounds there is, with respect, a real prospect of success on appeal.
28.	MR JUSTICE COLLINS:  You do not need to submit it with great respect.  I am prepared to accept I am not always right.
29.	MR TAYLOR:  There is a compelling reason in relation to each of the grounds why it should go to the Court of Appeal.  As to need, the defendant puts its case on the basis that, first, it was right to classify the claimant's position as being one of having a demand to reside in Basildon rather than a need to reside in Basildon.  There was a second limb to the argument which was that the council had considered that even if that approach was not accepted and there was indeed a need, then once one weighed up the various matters it was still appropriate to take enforcement action.
30.	MR JUSTICE COLLINS:  I think that is right.  I think one also has a contribution to the need argument.  It is this question of the report of the EERA which I appreciate your council is  challenging.  Nonetheless when you add that in as well you get what I think is a requirement to consider.  It may be that genuinely there is not anywhere else and the council cannot do anything else until it gets the co‑operation of the neighbouring councils.
31.	MR TAYLOR:  In relation to that the council, in my submission, has the following position which is all that does is add to the position that there may be a need and because ‑ as the defendant put his case ‑ it is a decision on a basis of demand and indeed on a need, it does not add anything to the point.  My Lord your judgment at paragraphs 31 to 36 finds that the defendant's approach on the classification of the need and demand is correct, but my Lord has not gone on to consider the point about whether or not the council has considered the matter properly on the basis that there is a need.  It is plain from the various references that are provided in paragraphs 39 and 40 of the defendant's skeleton argument that that was the case.  There is also the point that Mr Justice Ouseley in O'Brien considered this issue about whether the demand or need point is correct.  He took a different view from the view your Lordship came to. 
32.	MR JUSTICE COLLINS:  You may say the question as to whether the circular has it right is one that could be explored because the circular does equate demand with need, does it not?
33.	MR TAYLOR:  It does.  So, in my submission, firstly, there is a relative success on appeal because your Lordship has not considered the second aspect, that the council actually  considered there was a need.  In any event, this issue about need or demand is one that is highly important, not just in the context of enforcement against travellers but in planning generally.
34.	MR JUSTICE COLLINS:  I take that point.
35.	MR TAYLOR:  There is also the point that there is your judgment one way and Mr Justice Ouseley's judgment the other way.
36.	MR JUSTICE COLLINS:  I did not think there was much real difference between us, but still.
37.	MR TAYLOR:  I think that is all I can say in relation to that particular issue.  Moving on to the homelessness duty point, your Lordship has found that there is a risk that the council might have to find somewhere else for travellers to pitch their caravan because of the duties under the homelessness legislation.
38.	MR JUSTICE COLLINS:  You cannot quarrel with that, can you?
39.	MR TAYLOR:  There is the issue about whether bricks and mortar would be sufficient.
40.	MR JUSTICE COLLINS:  That is a difficult and interesting point perhaps, but, as far as I can recall, the Housing Act specifically refers to caravans, does it not?  I have had a case in the past where this issue was raised as to whether bricks and mortar could be suitable.
41.	MR TAYLOR:  There was a case called Cadona (?) that went to the Court of Appeal.
42.	MR JUSTICE COLLINS:  I cannot remember what the detail is.
43.	MR TAYLOR:  Even if it is right that the council does have a duty to find an alternative plot for travellers to pitch their caravans, if they do find such a plot there can be no justification for them remaining on the site.
44.	MR JUSTICE COLLINS:  No.  But at the moment they have not.  They say that there is nowhere that they can find.  The only point that was made was that that was not ‑ I think you have to accept ‑ specifically drawn to the committee's attention on the last occasion.
45.	MR TAYLOR:  But the consequence of there not being a plot for them to go to is the very factor that the committee took into account and still took enforcement action.
46.	MR JUSTICE COLLINS:  But it did not have it in the forefront of its mind.  Its attention was not directed to it, the homelessness position.  It is difficult to think that intentionality would be properly relied on.  Even if it is,  there is still the requirement for some temporary ‑ ‑ ‑ ‑ ‑
47.	MR TAYLOR:  Indeed.  I will finish the point.  The issue about the relationship between decisions and the homelessness Acts is obviously one which potentially arises in every enforcement decision which would have the prospects of moving someone off land on which they reside.  So clearly it is an important point, one which needs to be resolved by the Court of Appeal as a compelling case.  The last issue is about individual consideration.  On this point I refer you to the defendant's skeleton argument at paragraph 169.  We drew your attention to the officer's report in every case advising as follows:
"If a particular occupier's personal circumstances  were sufficiently serious to outweigh other considerations then a separate decision would need to be made in respect of that authorised site."
So it was a matter that was specifically drawn to the attention of members.
48.	MR JUSTICE COLLINS:  I am not persuaded it was spelled out to the extent it ought to have been.
49.	MR TAYLOR:  The extent to which individual consideration needs to be given to each plot is again clearly a matter that will arise commonly in regard to ‑ ‑ ‑ ‑ ‑
50.	MR JUSTICE COLLINS:  That must be right ‑ where they each own their own individual plots ‑ because you are enforcing an individual enforcement notice against each occupant of the land.  Thus you have to consider the individual circumstances of each separately.
51.	MR TAYLOR:  Indeed, which is why it is not (?) what it was.  I think the issue is the extent to which or the degree to which the council has to go through a procedural exercise of looking at it plot by plot or whether a formulation in an officer's report that draws the committee's attention to the point is sufficient.  That clearly is a matter of application.  I will not take up the court's time. 
52.	MR JUSTICE COLLINS:  I can see there is an argument.  Mind you, is it in interests of your client to take this on appeal?  If you do you will get a decision in months' time; it will not  be before the autumn at the best, I would have thought.  Whereas if you go through the right motions ‑ I do not mean that in the sense that you simply go through the motions ‑ if you do what you ought to do you may find you have an  unassailable decision in due course.
53.	MR TAYLOR:  I am sure that my clients have the point.  I am taking instructions today so we are taking every opportunity.
54.	MR JUSTICE COLLINS:  As I said at the outset, it is a problem.  This is not the only case as you are well aware.  It happens.  It is most difficult.  At the moment I think I probably ought to grant leave to appeal.  Whether they pursue it is another matter.
55.	MR OFFER:  I would not seek to dissuade you on that point at this stage.
56.	MR JUSTICE COLLINS:  I think they are important points.
57.	MR OFFER:  I would submit in relation to that ‑ on the basis of leave being granted ‑ I would ask for an extension of time to file a respondent's notice.
58.	MR JUSTICE COLLINS:  It is a matter for the Court of Appeal.
59.	MR OFFER:  No.  It is a matter for this court; it has power to deal with it.  It is CPR 52.5 (4):
"respondent's notice must be filed within such period as may be directed by the lower court or, where the court makes no such direction, 14 days after the date in paragraph 5."
60.	MR JUSTICE COLLINS:  You only need a respondent's notice if you are seeking to uphold my decision on a ground other than ‑ ‑ ‑ ‑ ‑
61.	MR OFFER:  Yes.
62.	MR JUSTICE COLLINS:  What ground are you going to try to rely on?
63.	MR OFFER:  It may be that we would seek to re‑raise the discrimination point.
64.	MR JUSTICE COLLINS:  You mean direct discrimination?
65.	MR OFFER:  Both.
66.	MR JUSTICE COLLINS:  I found indirect discrimination.  As far as I can recall, it was not even argued that there was any substantial difference between the proportionality approach in relation to justification.
67.	MR OFFER:  My reading of the judgment was that you found there to be a difference in treatment.  To that extent, indirect discrimination.  The question whether it was then justified was left an open question.
68.	MR JUSTICE COLLINS:  It was not.  I hope I made it clear that justification, in my view, was essentially the same as proportionality and there was no distinction to be drawn.  My recollection is that that was not conceded but it is effectively common ground in the argument.  I may be wrong in my recollection; it is a long time ago.
69.	MR OFFER:  If it be right the situation in the judgment is that my Lord's view is that the decision, as it currently stands, is it is not proportionate then I take the point.  The reason I ask for the extension is if there is to be such a notice it will need at our end for there to be further case plans for the Legal Services Commission.  We have taken instructions from our clients, and it is quite clear that it will take at least three weeks for any decision to come from them.  We have some doubts as to how long it may take.  I indicate that the last case plan was applied for in October and we were not given permission to do any work in this case until 14 January 2008.  This was in regard to the preparation for the final hearing.
70.	MR JUSTICE COLLINS:  You are afraid that the legal aid people will not give you authority.
71.	MR OFFER:  I am afraid that they will take a great deal of time and that we are left in a situation where the appellant's  notice will be filed, we have to respond to it, and as yet we do not have the funding with which to do that.
72.	MR JUSTICE COLLINS:  That is ridiculous.
73.	MR OFFER:  I agree with that, with respect.
74.	MR JUSTICE COLLINS:  The court has time limits that must be complied with.  If the Legal Services Commission is so incompetent that they do not appreciate that then ‑ ‑ ‑ ‑ ‑
75.	MR OFFER:  The other point that I would raise is that my friend addressed the arguments this morning on the basis that there are a number of matters of points of public interest that need to be taken up at a higher level.  If that is so, in my submission, it would be appropriate for the claimants to give consideration to the employment of leading counsel in the Court of Appeal.
76.	MR JUSTICE COLLINS:  That is not a matter for me.
77.	MR OFFER:  I appreciate that, but it would need some time for that to be done.
78.	MR JUSTICE COLLINS:  That is a matter you need to raise with the Court of Appeal.  It is not for me.  Subject to any objection, I am prepared to give you 21 instead of 14 days that you normally have under 52.5 (4) (b).
79.	MR TAYLOR:  We have no objection to that.  I do not think Mr Elvin likes to take procedural points of that nature anyway.
80.	MR JUSTICE COLLINS:  You can have 21 days.
81.	MR OFFER:  I am grateful.
82.	MR JUSTICE COLLINS:  I suppose that you may have to do something in the hope that you will eventually get ‑ ‑ clearly you must have funding to enable the matter to be properly argued.  Whether it needs, on consideration, two separate representatives I do not know.
83.	MR OFFER:  I would imagine that the situation would be that the   
claimants' cases would come together.  I do not think it would be envisaged that we would have more than one leader certainly.
84.	MR JUSTICE COLLINS:  That is not directly for me.
85.	MR OFFER:  I appreciate that.  I raise the matter because the only way we got the decision from the Legal Services Commission on the last occasion was by suggesting to them that if they did not give us a decision we would have them brought to court to explain why not.
86.	MR JUSTICE COLLINS:  You can tell them, so far as I am concerned, it would be an entirely perverse decision ‑ subject to finances which I do not know anything about, assuming they would qualify ‑ it would be a completely perverse decision, in my view, not to provide for (a) the ability to consider a respondent's notice if this matter is pursued and (b) to provide representation for the purposes of any appeal.  And  that decision must be made very speedily after application.  The extent to which representation should be granted ‑ ie how many counsel and how it is divided between the claims ‑ is not a matter for me.
87.	MR OFFER:  I appreciate your observations.  I am sure they will be of great assistance.
88.	MR WATKINSON:  I wonder if I might urge your Lordship to say 28 days.  It is of no prejudice to the appellants.
89.	MR JUSTICE COLLINS:  Are you going to quarrel with 28 days?
90.	MR TAYLOR:  I am not.
91.	MR JUSTICE COLLINS:  You can have 28 days.
92.	MR WILLERS:  Having heard what your Lordship has said and the sound of the warning shot across the Commission's bows, notwithstanding that I ask for 28 days in respect of the intervener's position too.  It may be that the Commission will want to seek to uphold your Lordship's judgment ‑ ‑ ‑ ‑ ‑
93.	MR JUSTICE COLLINS:  They are getting 28 days.  There is no reason why you should not as well.
94.	MR WILLERS:  Thank you.
95.	MR JUSTICE COLLINS:  The one thing this decision will not do is to bring litigation in relation to these problems to an end.
96.	MR OFFER:  I think we safely assume that.