South Cambridgeshire District Council v Gammell & Ors

Section 187B of the Town and Country Planning Act 1990 ("the 1990 Act") provides:

Given the express terms of section 187B(3) and the rules made under this section, it is not in dispute that in appropriate circumstances the section gives the court power to grant an injunction against a person who is unknown. These appeals arise out of injunctions granted against individuals whose identities were unknown when the injunctions were granted. They are two linked appeals. Each is an appeal from an order by which the appellant was held to be in breach of the injunction and to be in contempt of court.

The first appeal ("the Maughan appeal") arises out of two orders of Her Honour Judge Hamilton QC in the Bromley County Court, dated 11 March 2005, in which she ordered, among other things that: (1) the London Borough of Bromley ("the LBB") have leave to add Winnie Maughan ("WM") and a number of other persons to committal proceedings pursuant to CPR 19.4; (2) Winnie Maughan be committed for contempt of court to serve a term of one month's imprisonment unless she removed all caravans she owned or occupied from any part of a farm called Waldens Farm.

The second appeal ("the Gammell appeal") is from the committal order of Her Honour Judge Plumstead in the Cambridge County Court, dated 11 July 2005, which ordered, among other things, that: (a) Kathleen Gammell ("KG") was bound by an injunction granted by the Court of Appeal to the South Cambridge District Council ("SCDC") on 17 September 2004; (b) KG was in breach of the injunction; (c) KG be joined as a respondent to the committal proceedings; and (d) that sentencing be adjourned to the week beginning 7 November 2005.

Both appellants are represented by the same counsel, Mr Michael Paget. The Maughan appeal is brought pursuant to permission being given by Tuckey LJ, who stayed the operation of the committal order, and the Gammell appeal is brought with the permission of the judge.

The issue in both appeals is essentially the same. It is whether and in what circumstances the approach laid down by the House of Lords in South Bucks District Council v Porter [2003] UKHL 26, [2003] 2 AC 557, applies to cases like these where an injunction is granted, not against named individuals occupying caravans on land without relevant planning consent, but against unnamed individuals who were not in such occupation when the injunctions were granted. In each case the judge declined to apply the principles in the South Bucks case to the case before her and in each case she held that there was a crucial distinction between the two classes of case. The question in both appeals is whether the judge was right to do so.

The House of Lords considered three appeals involving different parties. In each case local planning authorities applied successfully to the court under section 187B of the 1990 Act for injunctive relief against the defendants, who are gypsies, to prevent them from living in mobile homes and caravans on land acquired by them for that purpose, but for which planning consent had been refused. The defendants appealed on the ground that, in granting the injunctions, the court had failed to consider, in addition to any relevant planning considerations, the likely effect of the orders on their human rights in accordance with section 6(1) of the Human Rights Act 1998 and the Convention scheduled to that Act.

The Court of Appeal allowed their appeals and the planning authorities appealed to the House of Lords. All the appeals were dismissed. The House of Lords held that section 187B of the 1990 Act conferred on the court an original and discretionary, not a supervisory, jurisdiction, to be exercised with due regard to the purpose for which it was conferred, to restrain actual or threatened breaches of planning control; that it was inherent in the injunctive remedy that its grant depended on the court's judgment of all the circumstances of the case; that, although the court would not examine matters of planning policy and judgment which lay within the exclusive purview of the authorities responsible for administering the planning regime, the court was not obliged to grant relief because a planning authority considered it necessary or expedient to restrain a planning breach; that the court would have regard to all, including the personal, circumstances of the case, and, since section 6 of the 1998 Act required the court to act compatibly with a Convention right (as so defined), and having regard to the right guaranteed in article 8, the court would only grant an injunction where it was just and proportionate to do so; and that, accordingly, the planning authorities' applications should be determined on that basis.

Article 8.1 of the Convention is entitled "Right to respect for private and family life" and provides:

It is important to note that, in each of the cases before the House of Lords, when the injunction was granted the respondent was in occupation of mobile homes or caravans in breach of planning law. As I read the speeches of the appellate committee, they endorsed the approach of Simon Brown LJ in the Court of Appeal. In paragraph 20, Lord Bingham set out paragraphs 38 to 42 of Simon Brown LJ's judgment and approved them. I refer only to what Simon Brown LJ said in paragraphs 41 and 42 of his judgment, which included the following:

In Davis v Tonbridge & Malling Borough Council [2004] EWCA Civ 194 Auld LJ, with whom Arden and Jacob LJJ agreed, summarised the effect of the South Bucks case in paragraph 34 as follows:

The question is whether those principles apply to this class of case. The facts in these appeals can be shortly stated.

In the early 1970s a 70-acre Green Belt site at Waldens Farm near Orpington was split into 804 lots and individually sold off principally to members of the Greek Cypriot community. Unfortunately over the years many of the plots were not maintained and became overgrown. In 2001 a number of plots were acquired by travellers, who erected hardstanding, roadways and fencing and put mobile homes and caravans on the site. All that was done without planning permission. Enforcement action was commenced by the LBB and some of the occupiers applied for retrospective planning permission. The application was refused by the LBB but an appeal to the Secretary of State succeeded in part. He granted temporary planning permission for a period of two years from January 2003. The Secretary of State's determination included the following:

It should be noted that the temporary permission was limited to one residential and one touring caravan on each of four plots, making a total of eight caravans in all. Further, the permissions had not been renewed and neither the LBB nor the Secretary of State has granted any further planning permission for the stationing of caravans on any part of Waldens Farm. The number of caravans on Waldens Farm increased from eight in 2001 to about 50 in December 2004.

On 8 July 2004 the LBB sought and obtained an injunction under section 187B of the 1990 Act. It was not directed to named individuals, but to the owners of plots 1 to 804 at Waldens Farm. It was in these terms:

Plot 469 is owned by WM either alone or jointly with her husband, Patrick Maughan. Her case is that she became the owner of the plot in September 2004. It follows, as is not in dispute, that the injunction was directed to her, among many others. She and her family of five moved on to plot 469 on 26 September 2004. WM accepts that three caravans were brought onto the plot on that day. She instructed Miss Sharon Baxter of the Community Law Partnership in Birmingham on 4 October 2004. Miss Baxter spoke to Mr Bloomfield of the LBB on the same day and was told both that the LBB had served an enforcement notice on the plot which took effect on 30 September and that an injunction had been granted in respect of it. At Miss Baxter's request he sent a copy of each to her. In these circumstances there is not, and could not be, any dispute but that WM was one of those to which the injunction was directed. Moreover, it is expressly conceded that she was aware of the injunction before the matter came before the judge in March 2005. The precise date on which she acquired that knowledge is not clear, but it is not relevant to the determination of the issues in this appeal.

In the meantime, on WM's instructions, a planning application was submitted on 26 October 2004. No application was, however, made on her behalf to vary or discharge the injunction. There is a dispute as to the validity of the planning application which had not been determined at the time of the order, which is the subject of the appeal; nor, so far as I am aware, has it progressed in any meaningful way since then.

A further injunction was granted on 25 November 2004 in somewhat wider terms than that of 8 July. The injunction of 25 November was expressed to be "without prejudice to the order dated 8th July 2004 which is to continue in force as at that date". It is therefore clear that the order of 8 July remained and remains in full force and effect and, in my opinion, the order of 25 November does not affect the issues in this appeal one way or the other.

In short, the position in the case of WM is that she and her family came on to the site with three caravans after the date of the injunction. The judge held that WM remained in occupation of the caravans on the plot in breach of the injunction in the circumstances in which she was well aware of it. In these circumstances she permitted WM to be added to the proceedings by name, declared that she was in contempt of court and imposed the suspended sentence of imprisonment to which I have referred.

This appeal is concerned with plot 10, Victoria View, which is part of Smithy Fen, Cottenham in Cambridge. It is adjacent to an authorised gypsy caravan site known as Setchel Drove and is one of 11 plots at Victoria View. It is not in the Green Belt. The history of the matter is broadly as follows. The present occupation of parts of the site by gypsy caravans began some time in 2003. Some time in 2004 plot 10 was purchased by KG's son, John. On 27 March 2004 the SCDC received a planning application in relation to plots 1 to 11 seeking permission to use the plots as a gypsy caravan site. Planning permission was refused. An appeal was lodged on 13 October 2004 and the appeal was heard for eight days from 12 July 2005. A decision is pending.

On 4 May 2004 the SCDC obtained an injunction pursuant to section 187B of the 1990 Act against the planning permission applicants, which included a J Gemill but not KG. In June 2004 the SCDC noticed that further people had come onto the site and therefore sought an injunction against persons unknown. At first instance the judge declined to grant the injunction because of a perceived want of jurisdiction. The SCDC appealed to this court and, as it happens, the appeal was heard by Brooke LJ and myself. We granted an injunction addressed to:

The schedule to the claim form identified 18 individuals, together with the wives of two of them, who were variously associated with 10 of the 11 plots. The schedule included "J Gemill at plot 1" and "John Gamill at plot 1", although the SCDC do not know whether either is related to KG. In any event, the schedule did not include KG or anyone at plot 10. Indeed plot 10 is not referred to in the schedule at all.

The reasons for the decision were set out in a judgment of Brooke LJ with which I agreed. No application has been made by KG or anyone else to vary or set aside the order, although such an application could have been made at any time under CPR 23.10(1). That is so even though the right to do so was not expressed in the order itself.

In February 2005 an enforcement notice was served requiring the cessation of use of the site by the stationing of caravans. An appeal was subsequently lodged against that notice. As I understand it, a decision on that appeal and on the appeal against the refusal of planning permission is expected in December of this year. KG moved on to plot 10 on 20 April 2005 with her caravan. It is correctly conceded by Mr Paget on behalf of KG that proper service of the injunction was effected on her; and that although, like WM, she cannot read or write the effect of it was explained to her on the next day, 21 April 2005. It is thus not in dispute, as indeed was held by the judge, that as from 21 April KG was in contempt of court by infringing the injunction.

However, at the application by SCDC for her committal, on 11 July 2005, KG applied to be joined as a defendant in order, as Mr Paget puts it in his skeleton argument, that she could ask the court to determine whether the injunction should apply to her following what he calls the Porter process. The judge held that the principles in that case did not apply to a person in her position before any question of sentence for breach arose. The judge said in paragraph 5 of her judgment:

It is clear that the judge will take KG's personal position into account when deciding what is an appropriate sentence. Mr Elvin QC correctly concedes on behalf of SCDC that she would be right to do so. The question in these appeals is whether the judge should have done so at an earlier stage.

Although there are factual differences between the two cases the question of principle identified by Mr Paget is the same in each case. He submitted to the judge in each case and to us that the court should carry out the balancing exercise in South Bucks when, as he would put it, the particular person becomes a defendant in each case. I am unable to accept that submission.

The crucial distinction between these cases and the SouthBucks case is that, whereas in the South Bucks case each of the respondents was in occupation of the land when the injunction was granted, that was not true in this case. In these appeals each of the appellants became an occupier of the land after the injunction was granted. It follows that the ratio of the decision in the South Bucks case does not apply directly to the facts of these appeals.

Does it apply in some way by analogy? In my opinion the answer to that question is no. Before expressing my conclusion on the particular points advanced by Mr Paget, I should refer to the important decision of this court in MidBedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] 1 WLR 1460, where the court comprised Lord Phillips MR and Mummery and Jonathan Parker LJJ. The facts can be taken from the headnote:

This court allowed the Council's appeal. The correct approach can clearly be seen from the concluding paragraphs in the judgment of Mummery LJ, who gave the judgment of the court. He said this:

Those principles inform the correct approach of the courts to cases in which defendants occupy or continue to occupy land without planning permission and in disobedience of orders of the court. As I see it, those principles are relevant, or potentially relevant, in circumstances in which a defendant seeks to vary or set aside an order of the court. However in this case Mr Paget seeks to apply the principles in South Bucks, and perhaps also Mid Bedfordshire, on an application to add a person such as each of the appellants here as a defendant to the action.

In my opinion that submission cannot be accepted. In each of these appeals the appellant became a party to the proceedings when she did an act which brought her within the definition of defendant in the particular case. Thus in the case of WM she became a person to whom the injunction was addressed and a defendant when she caused her three caravans to be stationed on the land on 20 September 2004. In the case of KG she became both a person to whom the injunction was addressed and the defendant when she caused or permitted her caravans to occupy the site. In neither case was it necessary to make her a defendant to the proceedings later.

By the time of the committal proceedings, in each case the appellant was a defendant to the proceedings, was in breach of the injunction and, given her state of knowledge, was in contempt of court. Those conclusions follow in each case from the terms of the injunction, the actions of the appellant and the state of knowledge of the appellant. The conclusions do not depend upon any judicial decision involving the exercise of any discretion or balance on the part of a judge. The exercise of such a discretion or balance only arises on an original application by a claimant for an injunction against a named party, on any subsequent application to vary or discharge by a person named as a defendant, and affected by the injunction, and to some extent at least in the course of a sentencing exercise. In the light of the principles in the authorities and those conclusions I would summarise the position as follows. 1. The principles in South Bucks set out above apply when the court is considering whether to grant an injunction against named defendants. 2. They do not apply in full when a court is considering whether or not to grant an injunction against persons unknown because the relevant personal information would, ex hypothesi, not be available. However this fact makes it important for courts only to grant such injunctions in cases where it is not possible for the applicant to identify the persons concerned or likely to be concerned. 3. The correct course for a person who learns that he is enjoined and who wishes to take further action, which is or would be in breach of the injunction, and thus in contempt of court, is not to take such action but to apply to the court for an order varying or setting aside the order. On such an application the court should apply the principles in South Bucks. 4. The correct course for a person who appreciates that he is infringing the injunction when he learns of it is to apply to the court forthwith for an order varying or setting aside the injunction. On such an application the court should again apply the principles in South Bucks. 5. A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant's personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in South Bucks and in Mid Bedfordshire. 6. In cases where the injunction was granted at a without notice hearing a defendant can apply to set aside the injunction as well as to vary it for the future. Where, however, a defendant has acted in breach of the injunction in knowledge of its existence before the setting aside, he remains in breach of the injunction for the past and in contempt of court even if the injunction is subsequently set aside or varied. 7. The principles in South Bucks are irrelevant to the question whether or not a person is in breach of an injunction and/or whether he is in contempt of court, because the sole question in such a case is whether he is in breach and/or whether he is in contempt of court. It should be noted that neither appellant applied to the judge for an order varying the injunction for the future. It follows that the judge had no proper opportunity in each case to apply those principles to the case before her.

It follows that the judge in each case was correct to hold that the appellant was in breach of the injunction and in contempt of court. She was also correct to hold that the principles in South Bucks were not relevant to those questions. She was further correct not to apply those principles to the application that the applicant be joined as a defendant. Each applicant was already a defendant.

It follows from the above conclusions that the appeal of KG must be dismissed. I would add only this. As I understand it, she is to be sentenced next week for contempt of court. On that occasion, the court will have regard to all relevant circumstances, including KG's personal circumstances. I noted earlier that no application has been made to the judge to seek a variation of the injunction for the future. Whether such an application might succeed would depend on all the circumstances of the case. But if KG were to make such an application, it should surely be made before the sentencing process is completed.

The position here is different. The judge heard detailed evidence and submissions in relation to a wide variety of factors, including the personal circumstances of WM and her family before deciding what was the appropriate sentence to pass. She reached the conclusion, to which I have already referred, that there should be a sentence of 28 days' imprisonment, such sentence not to take effect if the caravans were removed within two months. WM did not appeal against that decision. As a result, we do not have the judge's sentencing remarks. In these circumstances, we cannot properly entertain an appeal against sentence. There is no sensible basis upon which we could allow such an appeal.

As to the possibility of a variation of the injunction for the future, it is, I suppose, possible that an application for a variation could be made. But it has to be recognised that it would be fraught with difficulties in the light of the principles set out in the judgment of Mummery LJ in MidBedfordshire. However, WM's appeal, too, must be dismissed, subject only to this. When Tuckey LJ granted permission to appeal he also stayed the committal order. It appears to us that, given the particular circumstances of WM, it would be appropriate for us to suspend the committal order for a period of two months from today in order to give her an opportunity to remove the caravans and avoid the activation of the prison sentence.

LORD JUSTICE RIX: I agree.

LORD JUSTICE MOORE-BICK: I also agree.