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Planning control and human rights

This content applies to England

Human rights of Gypsies and Travellers must be taken into account when decisions are made to grant or refuse planning permission or to take action against alleged breaches of planning control.

See the page on Planning law for more information.

Planning permission

It is likely that in most cases concerning the application for the stationing of caravans on land by Gypsies and Travellers that Article 8 of the European Convention on Human Rights will be engaged. The issue in most cases will be whether the interference is justifiable as necessary in a democratic society.[1]

The balancing exercise between the Gypsy or Traveller's human rights and other factors such as harm to the countryside in green belt areas is not the same when making decisions about granting temporary planning permission and granting permanent planning permission. The issue of whether the Gypsy or Traveller does not have an alternative site to move to should be given weight, particularly when considering the grant of temporary permission.[2]

Stop notices and residential caravans

The Court of Appeal has held that the different treatment of residential caravans compared with buildings used as dwelling houses is justified and compatible with human rights law.[3]The use of stop notices for residential caravans is not a breach of Articles 8 or 14 (freedom from discrimination) of the European Convention on Human Rights. While such provisions might indirectly discriminate against Gypsies and Travellers, section 183(4) was prima facie neutral (ie until proved otherwise) and objectively justified under the Convention because it protected the environment.

The Court  that stop notices were a necessary measure against residential caravans but not against dwelling houses - due to the opportunity with the latter to take enforcement action before construction, and thus occupation and harm to the environment, begins. Caravans, on the other hand, can be moved onto land and create an impact on the environment quickly. In respect of a building where the enforcement action concerned its use as a dwelling house (ie no construction was taking place), any harm to the environment would be likely to be negligible and thus stop notices were unnecessary.

Enforcement notices

The European Court of Human Rights held that criminal proceedings against a person for failing to comply with an enforcement notice was a justified interference with that person's Article 8 rights. The measures of enforcement employed against the applicant in that case had been in accordance with the law and was proportionate to the legitimate aim pursued. There was no right to choose the location of a home and, where planning permission has not been granted for the use of private land as a caravan site, an enforcement notice was not an illegitimate interference with Article 8 rights. Moreover, refusing planning permission in order to protect the environment was not disproportionate and, despite being more likely to affect groups such as Gypsies and Travellers, it was not discrimination contrary to Article 14 of the European Convention on Human Rights. There was no lack of objective and reasonable justification for the action taken against the applicant.[4]

The High Court held that where an enforcement notice had not been complied with, it was appropriate to grant an injunction to remove Gypsies from a site they owned. To accept that this would interfere with their rights under Article 8 could compromise the planning system and criminal law.[5]

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] Chapman v UK [2001] ECHR 43; Durant & Anor v Secretary of State for Communities and Local Government & Anor [2016] EWHC 321 (Admin); see also para 16 Planning policy for traveller sites, DCLG, August 2015.

[2] Lee v (1) Secretary of State for Communities and Local Government (2) Runnymede BC [2016] EWCA Civ 558; Durant & Anor v Secretary of State for Communities and Local Government & Anor [2016] EWHC 321 (Admin); Moore v (1) Secretary of State for Communities & Local Government (2) Bromley LBC [2013] EWCA Civ 1194; Chiltern DC v Webb [2007] EWHC 1686 (QB).

[3] R (on the application of Wilson) v Wychavon DC and Secretary of State for Communities and Local Government [2007] EWCA Civ 52.

[4] Wells v UK (Fourth decision on admissibility) [2007] ECHR App No.00037794/05; see also Rooney v Secretary of State for Communities and Local Government [2011] EWCA Civ 1556.

[5] Doncaster MBC v AC and others [2013] EWHC 45 (QBD).

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