Wychavon District Council v Rafferty & Ors

SIR ANDREW MORRITT, C: This is the appeal of Mr Wisdom Rafferty, his wife Mrs Jane Rafferty, and their daughter Mrs Dawn Connors, from the order of Newman J made on 11th April 2006. By that order Newman J refused the appellants' application to amend an order of Penry-Davey J made on 11th October 2005, restraining them from using certain identified land as a caravan site or otherwise for residential purposes. He ordered their committal to prison for contempt of court in failing to obey its terms for a period of six weeks, but suspended it on condition that they remove their caravans from the land on or before 28th April 2006, i.e. tomorrow. He refused permission to appeal from the first of those orders, but no permission is required in respect of the second of them (see CPR Rule 52.3(1)(a)(i)).

In summary the background is as follows. Mr Wisdom Rafferty is described by his counsel as a Romany gypsy. As I have indicated, the second and third appellants are his wife and daughter. His daughter, who was widowed in October 2002, has three children aged between nine and 13. All six of them live together in two caravans and have done since the death of the daughter's husband. From then until it was closed in April 2004, their caravans were stationed on an authorised site at Mourton Vallance. After that site closed, they stationed their caravans on a temporary basis at sites called 'The Willows' and 'The Briarfield'.

In September 2005 Dawn, as I shall refer to the daughter, bought a plot of land adjacent to the B4084 road at Cropthorne in Worcestershire, WR10. She did so notwithstanding the advice given to her solicitor when acting for another client by the local planning authority in May 2005, to the effect that the site was not considered suitable for development as a gypsy site. Shortly after the purchase was completed, Mr Rafferty, her father, dug a trench in which to accommodate certain electrical cables. News of this activity came to the ears of the Wychavon District Council, the local authority.

On 6th October 2005 the Wychavon District Council commenced proceedings in the Queen's Bench Division seeking injunctive relief under section 187B of the Town and Country Planning Act 1990, restraining each of the three defendants from stationing caravans on the land. The application was supported by witness statements from a Mr Marshall and a Mr Rose. An ex parte application was made to Calvert-Smith J on the same day and was granted by him. However, the names of the defendants were wrong and it is I think now accepted that that injunction is spent.

Be that as it may, the application was renewed before Penry-Davey J on 11th October 2005. He granted an ex parte injunction restraining the Raffertys and other persons unknown from using the land in question as a caravan site or otherwise for residential purposes.

On 25th October 2005, the District Council registered Dawn's application for planning permission to use the land as a site for three mobile homes and three touring caravans for gypsies. They were to be occupied by herself and her family as to one, her father and her mother as to another, and I think it was her uncle or her brother and his family as to the third. She submitted with the application an extensive 18-page statement, dated 27th October 2005, describing in detail the history of herself, her family and their needs, in particular those of her children, and supported by original documentary evidence indicating their educational needs and the counselling they had been receiving from some bereavement agency since 2002.

On 31st October 2005 the solicitors for the Raffertys informed the Wychavon District Council of their intention to apply for a variation of the order of Penry-Davey J. They assured the District Council that in the meantime the Raffertys would comply with it, in accordance with its terms.

As a result of a number of moves, and indeed a good deal of violence and unpleasantness, on or about 2nd November 2005 the appellants, having been forced from the land on which they were then stationed in their caravans, decided to station them instead on a lay-by near the land which Dawn had bought. This prompted the Worcester County Council, as the highway authority, to commence proceedings in mid-December 2005 seeking possession of the lay-by and appropriate injunctions against the appellants.

In the light of all that, on 13th January 2006 the Wychavon District Council offered to the appellants a plot on an authorised site known as Cleve Prior. The offer was made by the Worcester County Council to Dawn and was rejected by solicitors on her behalf on a number of grounds, namely that the offer did not extend to her parents, who needed her to care for them, on the grounds of the educational needs of her children, and on the ground that generally the site was of a very insalubrious nature.

On 26th January 2006 the Wychavon District Council refused Dawn's application for planning permission. Three reasons were given:

The possession proceedings brought by Worcestershire County Council against the appellants in December 2005 laid in abeyance in the meantime, awaiting a decision from the House of Lords in Leeds City Council v Price [2006] UKHL 10. That decision was forthcoming in early March. In the light of that, the defence which it had been hoped it might afford to the appellants was realised to be hopeless. On 10th March they consented to an order for possession of the lay-by in favour of the claimant, to be delivered up by noon on 16th March 2006. On the same day, Dawn lodged an appeal from the refusal of planning permission. That was sent to the Planning Inspectorate, together with statements in support of it from a highways and planning expert obtained by Dawn. The evidence before us indicates that that appeal would be unlikely to come on for final determination before a year from today.

In the light of the consent order for possession and the various other matters which were no doubt weighing on their minds, on 12th March 2006 the three appellants and the third appellant's three children moved onto the land that Dawn had bought in September 2005, and stationed thereon their caravans and proceeded to use it for residential purposes.

On 15th March 2006, in attempting to validate that action, the appellants applied to the court to vary the terms of the order of Penry-Davey J so as to permit them to remain on the land until the planning appeal had been heard and finally determined. It was supported by a witness statement from Dawn, in which she reiterated the special needs of herself and her children. She admitted that they went on the land in the knowledge that they were thereby breaching the injunction and that they had received advice to that effect, but did so nonetheless because they had nowhere else to go.

On 28th March 2006 a committal application was launched by the Wychavon District Council supported by a witness statement of Mr William Rose. This was responded to on 31st March by a witness statement of the solicitor for the appellants, which was also in support of the application to set aside or vary the order of Penry-Davey J. She summarised the grounds in paragraph 14 in these terms:

On 5th April 2006 the matter came on before Newman J. It was adjourned by him after full argument to enable enquiries to be made about the housing position. Those enquires were made, and the matter was restored before him on 11th April. As I have already indicated, he refused the application to amend the order of Penry-Davey J. He ordered the committal to prison of the three appellants for a term of six weeks, but suspended on terms that they remove their caravans from the land on or before 28th April 2006. He refused permission to appeal in relation to the application to vary or amend the order of Penry-Davey J.

In his judgment Newman J set out in some detail the relevant facts. He recorded the fact that the appellants had apologised through their counsel for their admitted contempt, and had agreed to leave the site if their application to vary the injunction failed (see paragraphs 14 and 22). He accepted that a balance had to be struck between personal hardship to them on the one hand, and the public interest and need for upholding the law as to planning and generally on the other. He accepted the problems faced by gypsies generally, and the problems faced by Dawn and her family in particular. He concluded that Dawn's refusal of the plot at Cleve Prior authorised site was not justified (see paragraph 28), and he concluded that an offer of accommodation would probably be made if Dawn duly attended on the council in the near future (see paragraph 30). In relation to the planning appeal, he considered that, whilst it was not hopeless, he could not say that it had a real prospect of success and that it was not for the court to enter into the arguments, that being a matter for the inspector hearing the planning appeal in due course (see paragraph 36).

The judge concluded in the following terms:

Following that judgment, on 12th April 2006 the solicitors for the appellants wrote to the housing needs officer for Wychavon District Council, requesting accommodation for Dawn and her family under the homelessness provisions of the Housing Acts. An answer by 18th April 2006 was sought. The following day, on 13th April, the Wychavon District Council responded to the effect that Dawn and her children were accepted as being in priority need, so that interim accommodation would be provided, but that Mr and Mrs Rafferty were not.

On 18th April 2006 the solicitors for the appellants threatened judicial review proceedings against the Wychavon District Council for failure to treat all five (that is to say, the three appellants and the three children, so it should have been six) as a single family for the purpose of the homelessness provisions. On 19th April there was a further letter from the Wychavon District Council setting out the history of the judicial review application, and on 20th April 2006 the appellant's notice was issued and served by the appellants.

The orders they seek, are, first, the suspension of the committal order until 14 days after the final determination of the planning appeal and, secondly, though this is now overtaken by events, a stay on the committal order until the appeal is heard. The appeal is supported by a witness statement of their solicitor dated 20th April.

On 24th April the solicitors for the Wychavon District Council informed those for the appellants that accommodation will be available for Dawn and her children at the Crown Inn, Evesham as from the night of 25th April, and that caravan storage could be arranged.

The position therefore today, 27th April, is that there is alternative accommodation for Dawn and her children, but not specifically for and Mrs Rafferty.

In recent years there have been a number of cases dealing with the way in which the court should approach cases such as this. I would refer to South Bucks District Council v Porter [2003] 2 AC 558, Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709 and South Cambridge District Council v Gammell [2005] EWCA Civ 1429.

Newman J directed himself by reference to the relevant passages in reach of those three authorities. The first was South Bucks District Council v Porter. In that case the local planning authority had successfully applied for injunctions under section 187B of the Town and Country Planning Act 1990, where an application for a relevant planning permission had been refused. The decisions of the judge were reversed by the Court of Appeal because he had not taken account of non-planning considerations, including their right to family life under Article 8 of the European Convention on Human Rights. The decision of the Court of Appeal was upheld in the House of Lords. The headnote sufficiently records the principle which that case established. The headnote, having set out the facts much as I have described them, then referred to the holding of the court in these terms:

I should draw attention to four particular paragraphs in the speeches of their Lordships in that case. The first is part of paragraph 30, which appears in the speech of Lord Bingham of Cornhill. At page 579 he said this:

The second passage appears in paragraphs 71 and 73 in the speech of Lord Clyde. In paragraph 71 he said:

At paragraph 92 Lord Hutton said this:

Finally, in paragraph 100 Lord Scott of Foscote said:

In particular, it should be noted that if the court concludes that the planning appeal has a real prospect of success (and I quote from Lord Scott) it could, but not must, adjourn the application for an injunction until it has been determined.

In Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709, the judge had allowed the defendants to remain on land onto which they had bought their caravans in breach of both planning control and a court order, until their appeal against the refusal of planning permission had been determined. The Court of Appeal considered that the judge had been wrong. Their reasons, as stated by Mummery LJ in paragraphs 25 to 27 of the judgment of the court, are in the following terms:

I would also read paragraph 28, because one of the criticisms levied by counsel for the appellants against the judgment of Newman J is that he finished the quotation at the end of paragraph 27 and did not include this following passage:

In South Cambridge District Council v Gammell [2005] EWCA Civ 1429, the Court of Appeal gave further guidance on how the court should approach committal applications based on the failure of a defendant to observe the terms of the injunction. The Master of the Rolls in paragraph 33(5) said this:

I should also read sub-paragraph (7):

It is apparent from that concluding passage that the balancing act required by the decision in the South Bucks case was and is only relevant to the application to vary the order of Penry-Davey J. As counsel for the Wychavon District Council points out, the appellants do not challenge the committal order as such. Indeed, they cannot because they admitted the contempt and apologised for it. They had been advised by a competent solicitor throughout and there were no circumstances in which it could be said that they were not in contempt. The penalty is of course another matter. The relief they seek is that the committal order be suspended until 14 days after the determination of Dawn's planning appeal, which, as I have indicated, would be likely to be more than 12 months hence.

Accordingly it is appropriate to consider, first, the appeal against the refusal of Newman J to vary or discharge the injunction granted by Penry-Davey J. For this purpose, the appellants need permission under CPR Rule 52 and they do not have it. For my part, I would grant it to them for the simple reason that, as they do not need permission in relation to the committal application and we have heard full argument in any event, there seems little purpose in refusing permission to appeal when we have effectively heard the appeal.

I turn then to the merits or not of that application. The question whether or not to vary or discharge the injunction was a matter for the discretion of Newman J. Accordingly, it is incumbent upon the appellants to show, if they can, that Newman J was wrong in law, or took account of irrelevant matters, or failed to take account of relevant matters, or was obviously wrong in the conclusion to which he arrived. That that is the appropriate principle is not in dispute.

It is suggested that the judge fell into error in three particular categories. First, it is said that he followed the decision in the Mid Bedfordshire case notwithstanding first certain factual distinctions. Second, it is said, for a number of detailed reasons, that the judge failed to appreciate that there was and is substantial merit in the appellants' or Dawn's planning appeal. Third, it is suggested that the judge gave inadequate consideration to other relevant matters, such as, for example, the availability of alternative accommodation; the validity of Dawn's refusal of the offer of the site at Cleve Prior; matters of proportionality; and other matters of that nature. I will deal with them in turn.

First, then, the failure of the judge to recognise the distinction of the facts of this case from those of the Mid Bedfordshire case. This was the case in which the judge had suspended the injunction until the determination of the planning appeal. The Court of Appeal had disagreed with him in the trenchant terms I have already quoted. It was suggested that that case was distinguishable on three grounds. First, in that case there had been no apology; second, in that case the land in question lay in the green belt in an area of great landscape value, so that the likelihood of planning permission being granted was that much the less; and third, that the defendants had moved on to the land before applying for planning permission.

That those grounds of difference exist cannot be doubted, but in my view they are of no consequence. The judge was concerned, as we are, with the principle established by the Mid Bedfordshire case. He was well aware of the facts relied on in this case and indeed from the differences from the facts in that, as he referred in terms to the fact that in that case the relevant land was green belt land. He described the facts of the two cases as very similar, but not as the same. He did not slavishly follow the decision of the Court of Appeal in the Mid Bedfordshire case, but conscientiously sought to apply the principles enunciated by the House of Lords in the South Bucks case. Although it is true that there are differences in the facts of the Mid Bedfordshire case and of this case, I cannot see that Newman J is open to criticism for following the principle established by the Mid Bedfordshire case notwithstanding those factual differences.

I turn then to the merits of the planning appeal. The judge specifically addressed this issue in paragraphs 32 to 39 of his judgment. I have already quoted his conclusion. The appellants' criticism is that by declining to enter into a more detailed examination of the merits, he wrongly fettered his own discretion. They submit, on a number of detailed grounds, that had he done so he would or should have concluded that there was significant merit in the appeal.

The particular points on which the appellants rely can be summarised under eight headings.

First, it is suggested that the application did comply with the Wychavon District Council gypsy policy, as contained in its local plan COM6 as deposed to by Dawn's planning expert, Ms Heine.

Second, the proper consideration of the Office of the Deputy Prime Minister's Circular 01/06, published on 2nd February 2006 (that is to say, after the refusal of planning permission by the local planning authority) would lead to the view that permission should now be granted, if only for a limited and temporary period.

Third, the reasons given for refusing the application which pre-dated Circular 01/06 need to be re-examined.

Fourth, in relation to the highway reasons, the highways' expert, Mr Baker, whose statement has been obtained by the appellants, takes a different view.

Fifth, other instances suggest that the development on this land would be sustainable.

Sixth, the appellants were residing in the relevant area at the time the application was refused.

Seventh, the inspector will have to take account of other considerations in determining whether planning permission should be granted, such as: the need for gypsy sites; the needs of the appellants; the special needs of Dawn's children and her parents; and the right to respect for their home.

Eighth, reference was made to the result in two other similar but not identical cases, South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953 and South Buckinghamshire District Council v Smith [2006] EWHC 281 (QB).

It is clear I think that the evidence on which the inspector will ultimately decide the appeal will be to a substantially greater extent than is present before us and is likely to be different from that before us. We have been referred to passages from the reports of the experts obtained by Dawn in support of her appeal against the refusal of planning permission. There is also contrary evidence from highway engineers, and in some cases experts, which challenged the conclusions to which she has come. It is not disputed that the experts obtained to support the case for Dawn on the appeal will be cross-examined on their statements, and there will be counterstatements from witnesses called by the local planning authority, on which no doubt they will be cross-examined too.

As the decision of the House of Lords in Porter shows, it is not our function to second-guess the outcome of the appeal, and even if it were, we do not have the material on which to do so because of the further and different evidence, to which I have referred, which is likely to be adduced in due course.

The judge assessed the merits of the planning appeal as "not hopeless", but that they did not have "a real prospect" of success. To have any prospect of success on this appeal, the appellants have to establish that the judge's assessment was perverse. It appears to me that it is quite insufficient to suggest that other people might put the chances of success on the scale of certain to win and certain to lose somewhere different on the scale, unless it can be said that the point at which the judge put it was so wrong that no reasonable judge properly directing himself could have reached the conclusion that he did.

To my mind the appellants do not begin to satisfy that burden on them. It may well be that different minds will describe the prospects of success in different terms. It cannot be said that the terms employed by the judge were not fairly descriptive of the prospects of success on the appeal as they appeared to him, and that that is sufficient for the purpose of exercising his discretion whether or not to vary the injunction granted by Penry-Davey J.

I then turn to the third general head of complaint in the respect of the judgment of Newman J. It is suggested that he failed to give proper consideration to whether alternative non-roadside accommodation was suitable and/or whether he gave sufficient weight to the obligation of the United Kingdom to foster gypsy life and culture. I do not think there is anything in that point. The judge in paragraphs 31 and 41 specifically considered the alternatives of non-roadside accommodation as well as bricks and mortar accommodation, and he exercised his discretion in the light of each of them.

Then it was suggested that Dawn was not bound to accept the offer of alternative accommodation on the Cleve Prior site as it did not include her parents, and that the judge was wrong to find that her refusal was "unjustified" (see paragraph 28). The offer was not ideal, as the judge observed, but it would have provided a more stable alternative to remaining on the lay-by, for which possession was being sought by the highway authority in the local county court. It was only an anticipated decision of the House of Lords which could have given them any defence to that claim, and in any event it went the other way. I can see no ground on which to criticise the judge's conclusion.

Then it is suggested that there was and is no proper alternative accommodation for Mr Rafferty and his wife. The judge was not satisfied that this was so. On the information provided to us, his scepticism appears to be justified. It appears that it is the persistent refusal of Mr Rafferty and his wife to complete a second application and/or attend for an assessment of their needs which has prevented the local housing authority from considering their housing needs any further. The judge thought that if they did co-operate accommodation would be provided, and I do not think it can be said that the judge was demonstrably wrong.

Then it is said that the judge failed adequately to explain why his order was proportionate for the purposes of Article 8 of the European Convention on Human Rights. It was suggested that he failed to follow the structured approach favoured by Sedley LJ in Coates v South Bucks District Council [2004] EWCA Civ 1378 at paragraph 28. In that same case, Lord Phillips (then Master of the Rolls) said this:

The passages of which counsel complained are paragraphs 41 and 42, which I have quoted in full. As those passages make plain, they were but a summary of all that went before. To my mind, it is plain as a pikestaff why Newman J reached the conclusion that he did, and that the cardinal rule to which Lord Phillips referred was amply observed by him.

Accordingly, I conclude on the application to vary the injunction that none of the grounds relied on is sustainable. I have been through the various particular criticisms levied against the judgment by counsel for the appellants. He has said everything that can properly be said on their behalf. But to my mind neither individually nor collectively do they amount to a ground which would entitle us to interfere with the exercise of his discretion by the learned judge. There being no grounds for us to interfere with the exercise of his discretion, his decision must stand whether or not we, had we been in his position, would have reached the same conclusion.

Accordingly, for my part, I would dismiss the appeal against the refusal of Newman J to vary the injunction granted by Penry-Davey J.

I turn then to the appeal against the order for committal. This appeal, as I have said, lies as of right. However, counsel for the appellants does not suggest that the appellants were not in contempt of court as found by Newman J, nor does he suggest that there were any procedural defects. He does not contend that the penalty was in any way outwith the legitimate range of penalties for the contempt as proved.

Counsel told us that in the light of the undertaking given by the appellants to Newman J, if the variation were refused then to remove themselves and their caravans from the land in question, would be performed; and that if we refused the application to vary, then they would leave before the suspension of the committal order expired at midnight tomorrow night.

The evidence indicates that there was and is available alternative accommodation for Dawn and her children. The judge considered, and I agree, that the evidence does not suggest that there was and is no possibility of accommodation being made available to Mr Rafferty and his wife. No application has been made to us for any further suspension. Accordingly, for my part, I would dismiss the appeal against the committal order and allow it to take its course.

In summary, therefore, for all the reasons I have endeavoured to explain, I would dismiss the appeal from the refusal of Newman J to vary the injunction and I would dismiss the appeal against the committal order.

LORD JUSTICE TUCKEY: I agree that these two appeals should be dismissed for the reasons given by the Chancellor and have nothing to add to what he has said.

But I should like to make an observation about what we have been told is the practice of some judges in these gypsy cases. This is that witnesses should be called and cross-examined on planning issues to enable the judge to form a better view of the prospects of success of outstanding planning applications or appeals. I do not think this is appropriate. Nothing which was said in the passages cited by the Chancellor from South Bucks District Council v Porter suggest that this is what the court should do. Indeed, Lord Hutton at paragraph 92 and Lord Scott at paragraph 100 suggest that the court should not do so. Such a course is I think unnecessary to enable the court to form a broad view of planning prospects, which it can and should do from the papers in the same way that the court so often has to do about other contested issues in interim injunction proceedings.

LORD JUSTICE PETER GIBSON: I also agree, and I agree with the observation made by Lord Justice Tuckey.