South Bedfordshire District Council v Price & Ors

Home Farm, near Tilsworth in South Bedfordshire, is a property which belongs to Mr Sam Price, the Eighth Defendant. From 2000 until last December he and relations of his have lived there in a number of mobile homes and touring caravans. The property is located within the Green Belt, and its use for residential purposes in this way is in breach of planning control.

On 3 October 2000 Mr Price applied for planning permission to put the residential use of the land on a lawful basis. The Respondent Council refused the application on 28 March 2001 and, on 26 July 2001, served an enforcement notice. Mr Price appealed against the enforcement notice and against the refusal of planning permission. A public inquiry was held in March 2002, the inspector reported on 3 May 2002 and the Secretary of State decided the appeal by letter dated 26 July 2002, rejecting the appeal but allowing 18 months for compliance. The Prices remained in occupation after this period had expired.

Later in 2004 the Respondent commenced proceedings in the Queen’s Bench Division of the High Court for an injunction against the Defendants under section 187B of the Town and Country Planning Act 1990 in order to restrain them from continuing to use the property in breach of planning control. On 4 November 2004 Pitchers J granted such an injunction. The Defendants were not present or represented before him, but they had had proper notice of the application.

The injunction so granted contains three distinct elements. First, the Defendants had to cease residential use of the land by 2 December 2004. Secondly, they were required, by the same date, to remove all caravans, mobile homes, carriages, fences, sheds and other structures from the land, with one specified exception. Thirdly, they were obliged to restore the land by removing all rubbish, rubble, hardcore, hardstanding, tarmac, bricks, paving stones and all items and material brought onto the land during their occupation of it, followed by re-seeding the cleared areas to grass, those steps to be completed by 30 December 2004.

The Defendants did not comply with any aspect of that order. Eventually, on 13 July 2005 the Respondent issued proceedings for the Defendants’ committal, as a final attempt to make them comply with the court’s order. In response, on 3 August 2005 the Defendants applied by application notice for an order that the original injunction be discharged or varied, on grounds set out in the evidence in support of the application.

Both of those applications came before Bean J on 6 and 7 September. He refused to discharge or to vary or suspend the injunction. He decided to make a committal order. He suspended that order, but only for two months, whereas on the Defendants’ behalf he was urged to suspend it, in effect, pending the outcome of an appeal against the refusal of a new planning application which had been submitted on 27 July 2005 and refused on 1 September 2005. The Defendants appealed against that order.

On 24 November 2005 I heard an application on the Defendants’ behalf for a further suspension of the committal order pending the appeal, which was then expected to be heard in January 2006. I dismissed the application, except for suspending it until 2 December to allow a very short further period for the Defendants to get off the land. The Defendants did leave the property. In the end the appeal did not come on for hearing until April. In the meantime the public enquiry relating to the planning appeal was fixed for hearing for the middle of May, but has now been adjourned, with no date currently fixed. It is therefore not possible to forecast when the result will be known. In addition, new planning guidance has been issued by the Office of the Deputy Prime Minister, namely a circular 01/06 entitled Planning for Gypsy and Traveller Caravan Sites, which Mr Masters for the Defendants submits materially improves his clients’ prospects of obtaining at least a temporary planning permission to use the property for residential purposes.

The Defendants’ appeal against the suspended committal order does not require permission to appeal. They did, however, also seek to appeal the refusal of the judge to discharge the injunction and to vary it by suspending it. Both of these appeals required permission. I considered the applications for permission to appeal without a hearing last December. I refused the application for permission in relation to the judge’s refusal to discharge the injunction. No notice was given on the Defendants’ behalf within the due time to renew that application orally. Accordingly there is no subsisting appeal on that point. I adjourned, to the hearing of the appeal against the committal order, the Defendants’ application for permission to appeal against the judge’s refusal to suspend the injunction. Mr Masters has renewed that application before us, and we have heard full argument on the point.

Mr Masters sought to rely on a wide variety of matters in support of the appeal against the judge’s refusal to vary or suspend the injunction. At the hearing before the judge, though no direction had been given for the attendance of any witness for cross-examination in the directions order made on 4 August 2005, Angela Claire Whitfield, who had made a witness statement for the Council, was cross-examined. Mr Masters asked her questions on a variety of topics, and sought to use her evidence in support of several submissions. However, the application for an order that the injunction be varied or suspended had been expressly based on grounds set out in a witness statement of Mr Jeremy Browne made on 3 August 2005. Those grounds were relatively limited. He made points on five main areas. First, he said that no alternative accommodation had turned out to be available in the area, despite extensive searches, contrary to the expectation on which the planning appeal had been rejected in 2002 and 18 months allowed for compliance. Secondly, he asserted that the situation had become worse in South Bedfordshire and the area around, citing observations in one particular planning decision and referring to an assessment for the Council described as the Home Report, to which I will refer further. Thirdly, a fresh planning application had been submitted in relation to the instant site, on 27 July 2005, for which he said there was a good prospect of success. Fourthly, he referred to a number of aspects of the personal circumstances of the Defendants. Lastly, he explained why, despite some delays, the Defendants should be regarded as having acted promptly in the circumstances.

Mr Browne did not, in particular, refer to any respect in which the Council was said to have failed in its duty, except in not providing enough sites for gypsies to use. Accordingly, it seems to me that Mr Masters cannot fairly criticise the judge for not dealing with any such matter, and the appeal must be limited to matters within the ambit of what was properly in issue before the judge.

Both parties put in some additional evidence on the appeal. Mr Browne made a third witness statement dated 11 January 2006 and a fourth dated 5 April 2006, and Mr Sharpe of the Council made a witness statement dated 10 January 2006. Nothing turns on this evidence except for the planning guidance given in circular 01/06 which was exhibited to Mr Browne’s fourth witness statement.

Bean J in his judgment addressed first the question of discharge of the injunction, which is not now relevant. Moving on to the suspension of the injunction, he considered this on the basis that, first, the Defendants had nowhere else to go, secondly the Council was said to be at fault in not providing enough gypsy sites, thirdly, it was said that there was a prospect of more sites becoming available within a relatively short time, or of the planning application succeeding on appeal, and fourthly by reference to the personal circumstances of the Defendants.

The judge considered the planning history, in particular the report of the inspector on the appeal in 2002 and the Report by Dr Robert Home to the Council and several neighbouring councils made in 2004. He said of this report:

“14.

In 2002 or 2003 Bedfordshire County Council, Bedford Borough Council, Mid-Bedfordshire District Council and the Claimants jointly commissioned a report from Dr Robert Home of Anglia Polytechnic University on “Gypsy/Traveller Needs for Accommodation in Bedfordshire”; - Dr Home reported in February 2004. He recommended that the Bedfordshire local authorities should “plan to provide for an estimated need of 50 to 100 pitches of all types phased in over the next 5 years, having regard to the pattern of unauthorised encampments and sites in the area”. This recommendation has been accepted by the Claimants. This means that they accept that [there] will have to be additional sites somewhere in Bedfordshire by early 2009, but whether in the Green Belt area of South Bedfordshire is very much more speculative. Mr Philip Brown, the planning consultant acting on behalf of the Defendants and other travellers, suggests in a letter of 12^th August 2005 that the Claimants have conceded in enquiries into other sites that at least one additional site for gypsies will have to be identified within their district in the next two years. However, the evidence of the Claimants’ witness, Ms Angela Whitfield, which I accept, is that where in Bedfordshire provision is to be made for the further 50 to 100 pitches is a matter for negotiation. If it is in South Bedfordshire at all, it is more likely to be in growth areas close to conurbations than in the Green Belt.”

Mr Masters pointed out that it is likely that any sites in South Bedfordshire would be in an area which is now Green Belt, but would be excluded from the Green Belt as part of the process of designation. I do not suppose that the judge overlooked this. The point of the last sentence of paragraph 14 is that new sites are more likely to be near conurbations than out in the countryside, as the site now in issue is.

The judge concluded that there was only a remote chance of the latest planning application being successful. He relied on the failure of two recent applications as well as the refusal of consent on the appeal in 2002 relating to the present site.

He considered that strong justification would be required for suspending the injunction after four years’ defiance of the enforcement notice and 10 months’ defiance of the injunction. In this he derived support from Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709, [2005] JPL 1060.

He regarded the personal circumstances of the Defendants as justifying no more than a short further suspension, which he granted.

Moving on to the question of committal, the breach of the order was clear, and there was no issue as to proper service of the order or the application. He said this:

“26.

No alternative sanction to suspended committal has been suggested. I would be dismayed, as any Court would be, if any of these Defendants, particularly the mothers of young children, had to be sent to prison, but the remedy is in their hands: if they comply with the Court’s orders, no sanction will be applied.”

Having rejected the application to suspend the injunction, likewise he was not willing to suspend the committal order for more than a short period. He regarded the evidence that there was no alternative accommodation for the Defendants as being based on inadequate efforts on the part of the Defendants. He suspended the committal order for 2 months, and allowed a further month for compliance with the obligation to make good the area which had been used.

Mr Masters submitted to us that the judge was wrong to proceed on the basis that the Defendants had not tried hard enough to find alternative accommodation. He said that the acceptance of the Home report by the councils to which it was addressed showed that there was indeed no spare accommodation in the area, and no amount of extra searches or enquiries by the Defendants would have altered that.

He relied to a substantial extent on the current planning process, which is due for a public enquiry which was to have been held in mid-May but has now been adjourned, with no date yet fixed, and on the new guidance given in circular 01/06, which he said gave the Defendants a greater prospect of getting at least temporary permission to use the site in question, pending the provision of more permanent sites, even if a permanent planning permission was not obtained. He accepted that there was no real alternative to an order for committal, but said that the suspension should have been pending the outcome of the then current planning process. It seems to me that the new circular provides the main argument on the appeal, but before I deal with it, I will address briefly Mr Masters’ other points.

It seems to me that the judge directed himself correctly on all the points relied on before him, and came to proper conclusions. Clearly there is a shortage of accommodation, and more sites will become available within the next three years or so. But that does not, by itself, justify tolerating the use by the Defendants of a site which, as matters stand, has been determined to be unsuitable for the purpose, pending the designation and preparation of new sites, somewhere in the area, on one of which the Defendants may eventually be able to be accommodated. I agree with what the judge said at paragraph 19:

“I do not consider that the Council’s acceptance of Dr Home’s recommendations alters the position. If it did, it would mean that acceptance by a local authority of the need to increase sites for gypsies in the area in the foreseeable future would effectively make it impossible for that authority to enforce planning controls against gypsies, even where a court order has been obtained. This would not only “send out the wrong signal”, in the words of Mummery LJ, “to others tempted to do the same and to law-abiding members of the public”; it would also be an encouragement to local authorities to take as hard a line as possible in opposition to the provision of gypsy sites for fear of creating a loophole if they do otherwise. I do not think that this would be in anyone’s best interests.”

Mr Masters cannot plausibly criticise the judge’s conclusion that only a short suspension was justified on the basis of the Defendants’ personal circumstances.

I can see no basis on which the judge’s refusal to suspend the injunction can be said to be wrong. The Defendants’ use of the site was in breach of planning control, a breach which had existed from the start of the use in 2000, though use during some parts of the period had been authorised, or at least tolerated, in the sense of time being given for compliance. It was not wrong, in my judgment, to refuse to suspend the injunction. The real question was, and is, as to the terms of the sanction, under the committal order, and on what terms or basis that should be suspended.

Mr Masters submitted that the new planning circular represents a radical change in the policy in respect of gypsy sites, and that it would make a major difference to the prospects of success on the current planning appeal. I must therefore say something about the circular. It is entitled “Planning for Gypsy and Traveller Caravan Sites”. It replaces guidance given in an earlier circular, 1/94. The need for the new guidance is explained as follows:

“3.

A new Circular is necessary because evidence shows that the advice set out in Circular 1/94 has failed to deliver adequate sites for gypsies and travellers in many areas of England over the last 10 years. Since the issue of Circular 1/94, and the repeal of local authorities’ duty to provide gypsy and traveller sites there have been more applications for private and traveller sites, but this has not resulted in the necessary increase in provision.”

It came into effect immediately on its issue in early February 2006. The main intentions behind the new guidance were summarised as follows, at paragraph 12:

“Its main intentions are:

a)

to create and support sustainable, respectful, and inclusive communities where gypsies and travellers have fair access to suitable accommodation, education, health and welfare provision; where there is mutual respect and consideration between all communities for the rights and responsibilities of each community and individual; and where there is respect between individuals and communities towards the environments in which they live and work;

b)

to reduce the number of unauthorised encampments and developments and the conflict and controversy they cause and to make enforcement more effective where local authorities have complied with the guidance in this Circular;

c)

to increase significantly the number of gypsy and traveller sites in appropriate locations with planning applications in order to address under-provision over the next 3 - 5 years;

d)

to recognise, protect and facilitate the traditional travelling way of life of gypsies and travellers, whilst respecting the interests of the settled community;

e)

to underline the importance of assessing needs at regional and sub-regional level and for local authorities to develop strategies to ensure that needs are dealt with fairly and effectively;

f)

to identify and make provision for the resultant land and accommodation requirements;

g)

to ensure that DPDs [Development Plan Documents] include fair, realistic and inclusive policies and to ensure identified need is dealt with fairly and effectively;

h)

to promote more private gypsy and traveller site provision in appropriate locations through the planning system, while recognising that there will always be those who cannot provide their own sites; and

i)

to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to move to.”

The circular then describes the context of the needs of gypsies and travellers, and how the planning process operates, introducing a process of assessing the need for accommodation for gypsies and travellers (Gypsy and Traveller Accommodation Assessments, or GTAAs), so as to inform and influence Regional Spatial Strategies and, in turn, Development Plan Documents at the sub-regional level. It also deals with transitional arrangements, reflecting the time that will be needed before an adequate number of sites becomes available on a permanent basis. At paragraph 43 it says this:

“Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTAAs. The early data available from the GTAA will be one of a range of information sources that local authorities should consider when assessing the required level of provision to translate into site allocations in a DPD, and [Regional Planning Bodies] should consider when allocating pitch numbers to each district. Paragraph 31 above refers to the core strategy setting out criteria in advance of site allocations in a DPD. Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.”

Of particular relevance to the present case is what is said at paragraphs 45 and 46 about temporary planning permissions:

“45.

Advice on the use of temporary permissions is contained in paragraphs 108 - 113 of Circular 11/95, The Use of Conditions in Planning Permission. Paragraph 110 advises that a temporary permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gypsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission.

46.

Such circumstances may arise, for example, in a case where a local planning authority is preparing its site allocations DPD. In such circumstances, local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. The fact that temporary permission has been granted on this basis should not be regarded as setting a precedent for the determination of any future applications for full permission for use of the land as a caravan site. In some cases, it may not be reasonable to impose certain conditions on a temporary permission such as those that require significant capital outlay.”

The circular goes on to address the particular problems about sites in rural areas and in the countryside. Mr Pereira invited our attention in particular to paragraphs 50 and 51:

“50.

The presence of Green Belt will constrain and limit opportunities for identifying gypsy and traveller sites in some areas. The general extent of the Green Belt should be addressed through the RSS in the first instance. PPG2 makes clear that once the general extent of Green Belt has been approved, and once detailed Green Belt boundaries have been established in adopted development plans, they should only be altered exceptionally.

51.

Alterations to the Green Belt boundary can be used in exceptional circumstances for housing and other types of development inappropriate for the Green Belt. Such alterations have often been used in cases where a local authority’s area contains a high proportion of Green Belt land and no other suitable sites outside the Green Belt exist. Such an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) could be considered to meet a specific, identified need for a gypsy and traveller site in the same way such an alteration could be used for any other type of development. Such a proposal should be brought forward through the plan-making process. Where land is removed from the Green Belt in this way, it should be specifically allocated in a DPD as a gypsy and traveller site only.”

He also relied on paragraph 67, as follows:

“67.

The Government’s aim is to ensure that planning policies and controls are respected by all sections of the community and that where breaches occur effective enforcement action is taken.”

and on this statement in paragraph 70:

“The obligation on public authorities to act compatibly with Convention rights does not give gypsies and travellers a right to establish sites in contravention of planning control.”

Mr Masters’ submission is that this guidance marks a clear and express change in emphasis, explicitly designed to redress the inadequacy of the provision which has hitherto been made for gypsies, and that, specifically, it improves substantially the prospect that, even if the relevant site is not considered to be suitable for a permanent planning permission, a temporary planning permission will be granted as the outcome of the pending appeal, entitling the Defendants to use the site for, say, three years, so as to bridge the gap in time before an adequate number of permanent sites becomes available in South Bedfordshire or in the area of the neighbouring local authorities.

Mr Pereira pointed out that despite the new guidance attention still has to be given in the planning process to normal planning considerations, even in relation to a temporary permission which might last for two or three years, and stressed that planning merits remain relevant, and remain a matter for the planning process rather than the courts. He accepted that, in a proper case, the courts could form a view as to the likelihood that planning permission would be granted on a particular application or appeal, but submitted that it was very difficult for the court to form any view as to that in the present case, particularly as regards a temporary permission, in the absence of any evidence as to the planning issues relevant to the grant or refusal of a temporary permission.

He showed us passages in the inspector’s report in 2002 and the Secretary of State’s decision which make it clear that there are issues other than the preservation of the Green Belt, in particular an issue as to highway safety, because of the nature and position of the access to the public highway. The inspector’s report shows that highway issues were a specific reason for not granting the application. In the relevant part of the report he said this:

“122.

No doubt the access has fulfilled an agricultural need, possibly including large vehicles, without recorded incident. But I take the view that its use to serve residential accommodation would be likely to result in a more intensive use, with a great number of turning movements including vehicles towing caravans.

123.

Emerging from the access, visibility of traffic leaving the village is restricted by the hedge and bend so that even if the best possible improvements could be achieved, they would fall short of the recommended standards. Improvements to visibility would, to some extent require trimming or removal of parts of the hedge beyond the appellant’s control. Even if works were limited to those across the frontage of the appeal site, they would result in the loss of, or the substantially trimming-back of much of a hedge of acknowledged importance. It would also expose the appeals site to view, even more so than at present. Such works would be achieved only at considerable cost to the appearance and character of the countryside hereabouts. Replanting on an alternative alignment would take several years to provide comparable screening.

124.

Visibility improvements are not included in the s. 78 appeal though some alterations to the access is included. A condition to provide limited visibility improvements could be considered if permission is granted. But in my opinion, slowing and turning movements into the access and visibility available to vehicles emerging from the access would lead to more dangerous highway conditions, especially at night or in poor weather conditions. Like a previous Inspector, I consider the more intensive use of this access that would arise from the appeals scheme should not be condoned.”

In turn the Secretary of State expressed his conclusion as follows:

“9.

The Secretary of State in considering whether any other harm has been identified accepts the Inspector’s conclusion in paragraphs 98 and 133 of his report that the proposal would be visually detrimental to the appearance of the countryside. The appellant argues that this harm could be mitigated and rendered acceptable by the imposition and implementation of a landscaping condition but the Secretary of State agrees with the Inspector that any such scheme, however substantial, is unlikely to overcome the harm identified. Furthermore, on the matter of highway safety, the Secretary of State accepts the Inspector’s conclusions in paragraphs 120 - 124 of his report on this issue. Whilst the use of the access to fulfil an agricultural need has not resulted in any recorded incident, the Secretary of State concludes that the sub standard visibility for drivers emerging from the proposed access onto the highway, the proximity of the bend to the south west and the more intensive use of the proposed access resulting from the proposed residential use of the appeal site would be detrimental to highway safety and conflict with Local Plan Policy T4 and review Local Plan Policy T1.”

The Defendants’ evidence before the judge included a letter from their planning consultant, Mr Philip Brown, in which he expressed confidence that the new application would be successful at least to the extent of a temporary permission. The letter says nothing about the highway issue.

The new circular clearly does improve the Defendants’ case on the planning appeal. Previously, unmet need was a factor to which weight had to be given. Now the planning authorities are directed “to give substantial weight to the unmet need in considering whether a temporary planning permission is justified” (my emphasis).

The success of the application, at least to the extent of a temporary permission, is therefore more likely than it would otherwise have been. But it does not seem to me that it is possible to assume that it is more likely to succeed, even to that extent, than to fail.

If the appeal does succeed, at least to that extent, then the injunction and the suspended committal order would be discharged, because (subject to any points of detail on the terms of the grant) it would become lawful for the land to be used as the Defendant wish to use it. If it fails, then the injunction would remain in force and, if the committal order had been suspended pending the outcome of the planning appeal, it would again come into effect. In a sense, therefore, the question for the court on this appeal is whether the Defendants should be allowed to go back on to the land pending the outcome of the planning appeal.

I recognise the difficulties that the Defendants are likely to be suffering, through having no settled place where they can keep their caravans and live for the time being. Mr Masters made the particular point that the Defendant would find it much easier to participate in the planning appeal, and to present their case properly, if they were for the time being living at the site, both because it would be a settled place making it easier for them to focus on the relevant issues and because they could be more easily contacted by their advisers for the purpose of taking instructions.

Nevertheless it seems to me that the point made by the judge at paragraph 17 was right:

“Whichever way it is put, to suspend the injunction now after the Defendants have ignored the enforcement notice for four years and the injunction for ten months would be an extraordinary step.”

Mr Masters pointed out that during 18 months of the four year period the Defendants’ continued use of the site was legitimate because of the Secretary of State’s extension of the time for compliance. Nevertheless the point made by the judge is fair, and accurately expressed. In my judgment, it would only be right to suspend the committal order pending the result of the planning appeal if there were evidence before the court showing a substantial likelihood that the planning appeal would succeed, at least to the extent of a temporary permission. The Defendants’ chances of success on the planning appeal have improved, by virtue of the new circular, from having been, as assessed by the judge, “remote”, but it is impossible for this court to conclude that those chances are particularly strong.

In those circumstances, it seems to me that the judge was right in the way he dealt with the case as it stood before him, and that the change in circumstances since then does not justify allowing the appeal so as to permit the Defendants to return to the property pending the outcome of the planning appeal. I would therefore dismiss the appeal against the committal order and refuse permission to appeal against the judge’s refusal to suspend the injunction.

No submissions were addressed to us about the term of the committal order which relates to the obligation to restore the land to its former state. By virtue of my order made on 24 November, the committal order was suspended, so far as that obligation was concerned, until 16 January 2006. At that time the appeal was expected to come on for hearing by that date. Unless something has been done in this respect of which we were not told, the Defendants are already at risk of committal because of this part of the order. We will consider any submissions from Counsel (in default of agreement) as to whether, and if so for how long, the order should be further suspended in this respect.

It might be said that to suspend the committal order in respect of this obligation would be illogical if the order is not to be suspended in other respects. It seems to me that there is a material difference between the obligations to cease residential use of the land and to remove all caravans, mobile homes and so on from the land, on the one hand, and the obligation to restore the land by removing rubbish, rubble, hardcore and so on, and then to re-seed the cleared areas to grass, on the other. The most important thing at present from the point of view of the Council and the public interest is that the land should not be used in breach of planning control. That is achieved by the committal order as it stands. The obligation to restore the land is also important, but the public interest in the enforcement of planning control would not be greatly injured if the stage at which that obligation came to be backed up with the sanction of an imminently effective committal order were to be postponed until the result of the planning appeal is known. At that stage, if the appeal is successful, and subject to any issues arising from the terms of that success, it is likely that the injunction will have to be discharged. If the appeal fails, then the position in relation to the land will be settled, at least for the time being, and it would be appropriate for the obligation to restore the land then to be reinforced by the prospect that, if it is not complied with within a specified period after the result of the planning appeal is known, then the suspension of the committal order in this respect should come to an end.

I agree.

I also agree.