Broadland District Council v Brightwell

Mr and Mrs Brightwell appeal against the order made by Mr Nigel Wilkinson QC sitting as a deputy judge of the Queen's Bench Division on 14 October of 2009, when he granted Broadland District Council injunctions restraining the defendants in this way, namely that within three months from the date of the order they were to cease to use the land known as The Piggeries, The Tun, Hevingham in Norfolk for residential purposes whether by occupying any building, former stable block, caravan or mobile home for such purpose or otherwise. Then within two months they were to cease to use the land for storage of scrap metal parts, including vehicles which are no longer roadworthy and lorry bodies or other trailers; they were to remove from the land two mobile homes and the structure joining them, including the timber entrance porch and breezeblock bases. They were to demolish and remove from the land the straw barn and open-sided storage sheds and to remove from the land any residential caravans.

It is obvious at once that the appeal is of immense importance to Mr and Mrs Brightwell because they are at risk, if the injunction is upheld, of losing their family home and perhaps their livelihood. For my part, I have therefore approached this case with great care, borne of considerable sympathy for the appellants and their family and especially the youngest members of that family: Lucy, who is 12, and Jo, who is in court, aged 10.

The background is this. We are concerned with six acres of the Norfolk countryside which is owned by Mr Brightwell's mother. Importantly for this appeal, the land is designated for agricultural use and agricultural use only. The claim brought by the district council is for an injunction pursuant to Section 187B of the Town and Country Planning Act 1990 to restrain the Brightwells from repeated breaches of planning control. Section 187B of that Act provides as follows:

“(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 under 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.”

The background, so far as I need recite it in detail, can be taken from the Particulars of Claim, which were issued in November of 2006. The claim recites that the land has a long history of breaches of planning control resulting in the issue of enforcement notices. It is alleged that the first of these enforcement notices was issued in June of 1998, but that is an irrelevant matter because Mr and Mrs Brightwell did not enter upon the land until 1990, so that must be totally ignored.

By 1991 planning permission was granted for the erection of a stable block on the land and part use of the land for grazing horses. In 1992 an enforcement notice was served on the ground that the stable block was not being constructed in accordance with the approved plans and appeared to be a dwelling house. That led to an appeal to the Secretary of State, which was dismissed, and the appellants were required to remove features such as window frames, doors, a chimney and fireplace and certain internal walls. It seems that in about 1993 the family moved certain mobile homes onto the land and have lived in those homes ever since; so they have been using the land as the family home for 17 years, a not inconsiderable time.

The planning authorities took objection to that use, issued an enforcement notice in February of 1994 prohibiting the standing of a mobile home for residential purposes on that agricultural land, but the rejoinder was to apply for planning permission for the use of a caravan and that application was refused. A further application was resubmitted in October 1994 to retain the mobile home on the land: that too was refused. But that led to the first appearance of Mr and Mrs Brightwell in this court, and there, I am happy to record, they were successful, and the matter was remitted back to the planning authorities.

That led to a moratorium of some two years during which they were given the opportunity to establish, if they could, that the land was of a sufficient size that it could accommodate a dwelling necessary for the carrying out of the agricultural purposes in which they were engaged. There were two tests they had to meet, one the financial viability of the enterprise and the other the necessity for proper husbandry of the animals, being the little piglets they brought in onto the land to fatten for sale. Unfortunately for them, they lost that matter and so applied in 1999 for permission to convert the stable block into a single storey; that was refused; the appeal was refused; the appeal to the High Court was dismissed.

In October 2003 an enforcement notice was served prohibiting the erection of a straw barn without permission. That was appealed to the Secretary of State the appeal was dismissed in March 2004. It is that barn which remains on the land.

Perhaps in some desperation, the planning authority then served a breach of condition notice complaining of the continued occupation by the family of the mobile homes, but there was no compliance with that notice; and thus these proceedings were commenced.

By that time it was brought to the attention of the local authority that there were other potential breaches of planning permission, and so, although the case was originally listed for hearing in 2007, it was adjourned to abide the outcome of those further planning applications and appeals. They were heard by an independent inspector at a public inquiry which was held on 5 February 2008. All of the appeals were dismissed and the enforcement notices were upheld by a decision letter of 3 April 2008. That letter dealt with three main issues in what was called appeal A. The question was whether there was justification for the conversion of the stable block to a residential dwelling in the countryside. Appeal B was whether there was justification for the retention of the residential caravans for a limited period in the countryside. Appeal C related to whether the straw barn and open-sided storage barns were necessary for the purposes of agriculture within the unit or whether they would adversely affect the character and appearance of the countryside.

In that decision letter it is to be noted that the inspector did have due and proper regard to Article 8 of the European Convention on Human Rights, and he said in paragraph 40 of his decision letter:

Following that decision the matter was restored and eventually was set down for hearing before the learned deputy judge. He heard evidence from a Mr Howard, a planning inquiry officer in the enforcement section of the district council who set out the planning history as I have endeavoured to recite it. We have no transcript of that evidence but we are told by Mr Peter Harrison QC, who appeared there and appears again today, that Mr Howard informed the judge of the enquiries he had made of the housing department of the local authority. The information given to the judge is similar to the information given as to the present position today as Mr Harrison recounts his instructions. There seems to be no dispute about it. The housing department will -- and I venture to think correctly will -- regard the family as unintentionally homeless if they are forced to leave this land. Moreover, and for reasons that will become apparent, they are a family with priority need, and they will therefore be offered housing in fulfilment of the council's duty to accommodate them.

There is, however, no guarantee offered to rehouse the family in the village; indeed Mrs Brightwell, who is now a member of the parish council, told us that from her knowledge of the village there is no vacant property, and so there is a risk, indeed a real risk, that they would be accommodated elsewhere.

The family situation is this. They have three elder children as well as Lucy and Jo, and as I said they have lived on the land for 17 years, maybe not in the greatest of comfort, existing as they do in these mobile homes, but it is home to them, and it is rightly and jealously guarded as such. The conditions in which they live may explain if not the origin of, certainly the exacerbation of Lucy's asthmatic condition, and in the papers I have been reading I note a medical report from the general practitioner, dated November 2008:

The family are settled in the village. Jo is a boy with some educational needs but he thrives, as I shall accept, at the village school, as does Lucy. The farming enterprise itself has expanded over the years; the Brightwells now keep up to 600 little piglets which are sent to them weighing about 7 kilograms, but when taken off to market, being the supermarket Waitrose, they are a healthy 105 kilograms and in tiptop condition, ready for sale by that outlet. The farming operation is intensive; they have letters of support from the suppliers of the little pigs, a considerable enterprise in East Anglia which is dotted with pig farms, and if I read the concluding paragraph of a letter from that organisation I think it conveys the picture:

Moreover, there is a report from the vet which tells me that:

The family therefore enjoy not only the support of those who work with them in the industry, but they enjoy moreover the support of the local community, and I take it as a fact which speaks eloquently of Mrs Brightwell and her good standing in the community that she has been elected to the local parish council. Having seen her and Mr Brightwell appear before us and the measured way in which they dealt with this hugely emotional problem, I am impressed by them and I am grateful to them for the way they have presented their case. Their written submissions, to which I have had full regard, have been prepared with help from someone with legal knowledge, and I congratulate him or her on an excellent argument which many counsel would have been proud to put their name to.

Their argument is that they do no harm. They have the support of the community. They handed in a petition today of many pages. It is headed, it is true, “In support of Mr Brightwell's planning application for a pig shed”, and so I am not entirely sure whether the signatories are aware of the precise problems with which we are confronted and the use of the land for residential purposes, but I am prepared to assume in their favour that the village, being a small Norfolk village where everybody will know everybody else's business, is fully alive to the predicament of Mr and Mrs Brightwell and, for my part, I am prepared to accept that they genuinely have the support of all, bar one more curmudgeonly neighbour.

Their argument then is that they do no harm; they make no demands on public funds; they pay their way; they produce high quality meat for a top supermarket chain, and they say, in effect, very politely, “leave us be and let us get on with it”. It is a powerful submission.

The judge accepted, as I read his judgment, the essentials of their case. He said in paragraph 7 to 9 what I have been attempting to summarise:

“7.

The essence of the dispute between the Brightwells and the Council is their underlying wish (the wish of the Brightwell family) to reside on this land. They wish to do that for their own reasons. They also say the ability to effectively farm the land as a piggery requires there should be farmers living on-site and not off-site. This is an issue which has been examined under the umbrella of the planning legislation by various inspectors over time. The conclusion that has been arrived at is not in favour of the Brightwell argument and is in favour of the Broadland District Council who contend that what in essence is going on here is a family are to establish a residential usage under the umbrella of an argument that seeks to suggest that it is agriculturally justifiable.

8.

That position has failed and it is not a matter for me to judge whether or not it should have failed. There is little in dispute on the facts in relation to the planning history. Evidence was given by Mr Howard. Mrs Brightwell declined the invitation to give evidence from the witness box but addressed me on the principal issues that go to the making of the injunction. The fact she did not give evidence in no way detracts from everything she had said. I regard her as a very worthy individual who advances the arguments in favour of her and her husband in a highly persuasive way. She emphasises they are good farmers. There is abundant information in a bundle of documents she has produced to show others who work on the agricultural community in the area find them to be worthwhile farming neighbours. There is little evidence, and indeed quite of volume of evidence the other way, to show they may have been causing forcibly in their favour and I have no reason to think were this matter to be dealt with on the basis of an analysis of local assessment of them that the argument would go against them.

9.

Mr and Mrs Brightwell pay their way. They pay their taxes, they do not require the state to make accommodation available to them or fund the cost of such accommodation. When they came onto the site they had with them three children and since arriving at the site, two further children; Lucy and Joe (aged 11 and 9 now) have been born to them. Lucy is apparently not well-suited to the somewhat austere conditions of caravan life on the site and has an asthmatic condition that may be attributable to the dampness and the cold of that type of accommodation. It is apparent that Joe, the youngest, who is shown in a photograph recently taken, may have been suffering from educational problems resulting from the difficulties of their state, not just the circumstances in which they are required to live but the stress of the confrontation that has existed between the family and council for such a long period of time.”

The judge correctly said it was not for him to judge whether or not the planning applications should have succeeded or failed. He noted in their favour the high regard in which they are held in the community, how they pay their way and the several afflictions that beset Lucy and Jo, and he concluded in paragraph 10, and it is an important sentence:

I shall not quote as extensively as he did, but I think that it is nonetheless important to read selectively. In paragraph 8 Simon Brown LJ said this:

I interpose that although that was a case involving gypsies the remarks are fitting for this case. He continued:

I then turn to what he said in paragraph 41:

Lord Bingham then considered the court's approach to an injunction brought under Section 187 emphasising that, among other things, from paragraph 29:

He then turned to the separate consideration of Article 8 of the European Convention on Human Rights and in paragraph 34 said this:

The issue was whether measures were "necessary in a democratic society" or, differently expressed, whether the means employed to pursue those legitimate aims were proportionate. Having then considered the two cases that went to Strasbourg, Buckley v The United Kingdom [1996] 23 EHRR 101 and Chapman v The United Kingdom [2001] 33 EHRR 339, he concluded, paragraph 37:

“These cases make plain that decisions properly and fairly made by national authorities must command respect. They also make plain that any interference with a person's right to respect for her home, even if in accordance with national law and directed to a legitimate aim, must be proportionate. As a public authority, the English court is prohibited by section 6(1) and (3)(a) of the Human Rights Act 1998 from acting incompatibly with any Convention right as defined in the Act, including article 8. It follows, in my opinion, that when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is in any event required by domestic law to carry out.” [emphasis added]

That concluding sentence is also important in this appeal.

The other members of the House agreed with Lord Bingham. Lord Steyn characteristically emphasised the need to consider Article 8 and endorsed Simon Brown LJ's description of the proportionality exercise that had to be conducted. Lord Clyde to much the same effect. But it was Lord Hutton who expressed the view upon which Mr Harrison so strongly relies. He said in paragraph 89, having reviewed Article 8 and its application in the Strasbourg cases said this:

So that was the case to which the judge was properly directed and to which he undoubtedly had regard. He seems to have accepted a submission by Mr Harrison that the test was whether the court was required to exercise its own discretion, not of the planning merits but of the expediency of issuing an injunction. In cases like this, submitted Mr Harrison, where there is a residential use on the land the court is not simply endorsing the decision of an inspector who has considered the proportionality of the enforcement action but asking itself whether or not granting the injunction would be appropriate considering the personal circumstances involved. Whilst that might be impeccable for an injunction, it is a pity there was not reference to Article 8.

My alarm has been heightened by the way the judge dealt with the matter because he recited at length from paragraph 38 of Simon Brown LJ's judgment, part of which I have read. He looked at paragraph 42, which does not in my view add much, but signally missing from his recitation of the important passages is that reference in Simon Brown LJ's judgment to the need for proportionality in order to satisfy the Convention requirements, and it is plain, as I have read, that that was a necessary part of the court's function in order to comply with the court's duty to comply with the Convention.

No appeal could lie against the grant of the injunction if one considers only the exercise of the discretion the judge has whether to grant that relief or not. The challenge to this judgment is properly reflected in the grounds and the reason given by Elias LJ for granting permission for this appeal. Elias LJ gave as his reason for that permission:

So I turn to the way in which Mr Wilkinson dealt with Article 8, and I recite from paragraph 17 and 18 of his judgment:

I confess to have been very troubled by those passages. For the judge to address himself to the only additional matter to which he needed to refer, being "the possible application of Article 8”, does seem to me to be unfortunate. There was no question but that Article 8 was applicable, and the local authority had never challenged the fact that Article 8 was engaged. True, the judge did go on in that paragraph to refer to the influence of the Human Rights Act and the need to protect the personal circumstances of those who live in a particular place, and that is not unimportant because it indicates that he found it “plain” that the court had to be involved in that way. He relied on that sentence of Lord Bingham which I have read and, taken out of context, it could be argued that Lord Bingham was questioning whether Article 8 had any bearing on the court's approach to an application under Section 187, but the construction of the meaning of that single sentence flies totally at odds with everything that Lord Bingham was saying in his speech read as a whole, which makes it as plain as could be that Article 8 was engaged in a matter such as this. But I wondered whether the learned deputy High Court judge had misconstrued Lord Bingham, because in paragraph 18 he went on to consider the matter, pointing out that this was not a gypsy case, so one asks: does he think therefore Article 8 is not engaged, and then the important words:

He clearly had in mind that the considerations of Article 8 were present in the case, and in saying in effect all I have to review is my judgment under Section 187B. I confess I do not understand fully the last sentence of paragraph 18 and that is why this has been a troublesome appeal. It is therefore with embarrassment that I remind myself of the words of Lord Hoffmann, now engraven on my heart, in the case of Piglowska v Piglowska [1999] Vol 1 WLR page 1360, where his Lordship said -- and the words are pertinent for this appeal -- at page 1372G:

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case [he did not add ‘as did the Lord Justice’ but never mind] but also of a reserved judgment based upon notes, such as was given by the District Judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973 and, I would add, of Article 8 of the European Convention on Human Rights].

An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

Having given this matter careful thought, I have come to the conclusion that Lord Hoffmann's words are apposite in this case. This was an extemporary judgment; Article 8 is now extremely well known. Article 8 was at the forefront of the consideration of the House of Lords in the Porter case, and it is inconceivable to me that the learned deputy judge, who clearly had Porter well in mind, could have failed but appreciate that Article 8 was truly engaged. He did not, it is true, go on to say that the Article 8 exercise required the court to consider proportionality, but it seems to me that he was entitled to rely on those passages not only in the sentence he quoted from Lord Bingham's speech but the sentence I have emphasised in Lord Hutton's speech, that if the court properly engages with Section 187B then the court will have covered the same ground which is relevant to the proportionality exercise defined by Article 8.

So I am satisfied that the judge did have regard to Article 8. The question then is whether he properly had regard to the relevant material. His conclusion was expressed in paragraph 20:

Having looked carefully at his judgment as a whole, I am satisfied that he properly put into the balance the matters which adversely affected this family. Their home was in jeopardy; the children were suffering and would continue to suffer; their potential settled existence in the village and in the village schools was under threat. It was important for them to maintain their way of life, but the planning factors were of great importance and the flagrant breaches and contumelious attitude of the Brightwells rendered it almost inevitable that the local authority's application be granted.

I end with one more citation from Lord Bingham's speech dealing with planning control, paragraph 10:

In conclusion, I have to take note, as Lord Bingham emphasised in paragraph 32, that the rule of law is not well served if orders are made and disobeyed with impunity, and consequently, sympathetic though I am to the family, I am now satisfied that the judge made no error and that the appeal must therefore be dismissed.

I will add this postscript. This decision will be extremely hard for Mr and Mrs Brightwell to accept, and I would urge a moment of attention from them. They have waged a battle against the planning authority of this district borough. The housing department is a wholly separate department and they should not view them with the same antagonism. I hope that if they approach them sensitively, accepting this judgment and recognising that, subject to any further appeal, it is the end of the road for them, then I hope that the local authority will be equally sympathetic to the plight of this family, recognise they have been in the village for 17 years, and, even if it means going into the private sector, endeavouring to find and, if necessary, given that it may mean the end of the family's self support, paying the necessary housing benefit, but find something in the village that would be the happiest outcome for this very unhappy case. Regrettably, I would dismiss the appeal.

I agree.

I also agree.