South Cambridgeshire District Council v Persons Unknown

J U D G M E N T

1. LORD JUSTICE BROOKE: This is an appeal by the claimants, The South Cambridgeshire District Council, ("the Council"), against an order made by Judge O'Brien in the Cambridge County Court on 16 July 2004. He dismissed an application for an injunction against the defendants restraining them from causing or permitting the deposit of hardcore or other materials on land known as Plots 1 to 11 Victoria View, Smithy Fen, Cottenham, which is in the council's administrative area; or causing or permitting the entry onto that land of any caravans, mobile homes or other forms of mobile accommodation; or using or permitting the use of that land or any of the caravans or mobile homes thereon, on the date of the council's application on 14 July 2004, for residential or any other non-agricultural purposes (pursuant to section 187B of the Town and County Planning Act 1990).

2. The defendants were described in the original claim form in the following terms:

"Persons unknown (being persons other than those listed in the Schedule to the claim form) proposing to deposit hardcore and/or to station caravans and/or to occupy existing caravans on land at Victoria View, Smithy Fen, Cottenham, Cambridge."

The schedule to the claim form identified 18 individuals, together with the wives of two of them, who are variously associated with 10 of the 11 plots in question. The council seeks an order for service in these terms:

"Service on the Defendants of this application form, the Claim form herein, the accompanying witness statements and any injunction granted by the Court may be effected by leaving such documents in clear plastic envelopes nailed to a stake or gatepost or other prominent location on each of the plots 1-11 Victoria View, Smithy Fen, Cottenham pursuant to CPR 6.8."

3. Mr Langham, who appears for the Council, told us that he would be content if the word "proposing" was taken out of the identification of the defendants. We have had a long discussion with him about the way in which the claim form ought to be amended. Certainly, at the time of delivering this judgment, the appropriate language appears to be:

"Persons unknown (being persons other than those listed in the Schedule to the claim form) causing or permitting --

Hardcore to be deposited, caravans, mobile homes or other forms of residential accommodation to be stationed, or existing caravans or other mobile homes to be occupied on land at Victoria View, Smithy Fen, Cottenham, Cambridge."

There are, however, furher drafting details to be mastered if the words "residential or any other non-agricultural purpose" have to be accommodated. We will sit again at 2pm to approve the final form of this amendment.

4. The judge dismissed the application, but he did not consider he had power to grant an injunction in these terms. However, he granted permission to appeal and commented for the benefit of this court that the Council was attempting to deal with a very serious and notorious local problem. In his view it was a serious point which should be reviewed by a higher court. This is an excellent example of the type of occasion in which a judge should grant permission to appeal. It is also very helpful to have Judge O'Brien's note on the form that he signed.

5. The seriousness of the problem is described in the witness statement of Mr Gareth Jones, the Council's Deputy Planning Director. The land in question is adjacent to a gypsy caravan site known as Setchel Drove. It is part of a larger site called Smithy Fen. Mr Jones says he has known about the Smithy Fen site for much of the 16 years during which he has been in the Council's service. His evidence shows that in June 1999 the Council issued enforcement notices embracing all eleven plots. These notices were designed to stop the activities such as those against which the present injunction is sought, and they were upheld on appeal. Mr Jones has exhibited to his witness statement plans which show that a number of planning permissions have been granted to travellers to site caravans for residential use on parts of the Smithy Fen land. But he says that authorised gypsy caravan sites to date have been concentrated on the front and back of that land, and that the Council has resisted attempts to in-fill the field between those two authorised areas.

6. Mr Jones also explains the relevant development plan policy, which relates to proposals for caravans of travellers outside the green belt. He states why certain of the criteria, which need to be met to demonstrate the need for a site, are not satisfied in relation to activities that consist of the deposit of hardcore and the arrival of further caravans on this particular land. There is also a presumption against residential development outside the framework of a village in another part of the development plan policy. This land is outside the framework of the village of Cottenham.

7. The governing statutory provision is to be found in section 187B of the Town and County Planning Act 1990 which provides:

"(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers on this Part.

(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.

(3) Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this section 'the court' means the High Court or the county court."

The procedural rule which governs applications of this kind is to be found in County Court Rule Order 49, which is scheduled to the Civil Procedure Rules. It provides that:

"7(1) An injunction under--

(a) section 187B ... of the Town and County Planning Act 1990 ... may be granted against a person whose identity is unknown to the applicant.

In the following provision of this rule such an injunction against referred to as an injunction under paragraph (1) and the person against whom it is sought is referred to as the respondent.

(2) An applicant for an injunction ... under paragraph (1) shall describe the respondent by reference to-

(a) a photograph;

(b) a thing belonging to or in the possession of the respondent; or

(c) any other evidence

With sufficient particularity to enable service to be effected, and the form of the claim form used shall be modified accordingly."

Subparagraph (3) relates to the filing of evidence.

"(4) Paragraph (2) is without prejudice to the power of the court to make an order in accordance with CPR Part 6 for service by an alternative method or dispensing with service."

8. I am wholly satisfied that the statute gives the court the power to make an order of the type sought by the claimants. There was some difficulty in times gone by against obtaining relief against persons unknown, but over the years that problem has been remedied either by statute or by rule.

9. Recent examples of the way in which in a different context the power to grant relief against persons unknown is being used under the Civil Procedure Rules is illustrated by two judgments of Sir Andrew Morritt V-C in Bloomsbury Publishing Plc v News Group Limited[2003], EWHC 1205 (Ch), [2003] 1 WLR 163; and Hampshire Waste Services Limited et al v Persons Intending to Trespass and/or Trespassing Upon Incinerator Sites[2003] EWHC 1738 (CH). I do not consider it is necessary to refer to any part of those judgments, except to say that it was because of the approach Sir Andrew Morritt adopted in his discussion as to how "persons unknown" should be identified, that Mr Langham wished to remove the concept of persons proposing to deposit hardcore (which referred to their subjective intention) and to substitute the words which he selected.

10. Accordingly, I am completely satisfied on the evidence that it is expedient or necessary to grant the relief sought by the claimants. The form of relief sought in the Application Notice appears to be satisfactory once the identification of the defendants on the claim form has been amended.

11. All that remains to be done, apart from tidying up the proposed amendment, is to tidy up the provision for service on the defendants. We have had a discussion in court about the effect of the various rules, including CPR 6.8. This is a matter upon which we have invited Mr Langham to return to this court with proposals which comply with the requirement of the rules. The general gist of what the court has in mind is to permit arrangements for service on the defendants of the claim form and the injunction by which they are placed in clear plastic envelopes and nailed to a stake or gatepost, or other prominent location, on each of the 11 plots. Once a week the Council should ensure that the notice is there. The notice should inform them that they can obtain copies of the application notice, and the accompanying witness statement and exhibits, by applying to the Council at an identified address at its planning offices during working hours.

12. I have sympathy with the judge because it is a difficult area of the law but, as the Vice-Chancellor has demonstrated, the powers of the court to do justice are now sufficiently wide to enable relief of the kind sought by the District Council.

13. For those reasons I would allow the appeal. I will hear counsel at 2 pm as to the precise form of the order.

14. LORD JUSTICE CLARKE: I entirely agree. As to service, the relevant rule is only CPR 6.8. It appears to me that it should be a comparatively simple matter to draw up the relevant provision in relation to service as indicated by my Lord.

(Agreed Minute of Order received and produced in court at 2pm)