Mid Suffolk District Council v Clarke

After I had delivered an extempore judgment on 16^th January 2006 and concluded that the claimant was entitled to a permanent injunction and that the defendant should be refused leave to amend his defence, counsel for the defendant advanced submissions about the extent and terms of the injunction, which it would have been more appropriate for him to have advanced in the course of substantial argument as to whether the claimant was entitled to the injunction which had been claimed in the action.

One of the principal arguments relied upon to resist the claim had been that if the defendant was prevented from carrying on any activity involving use of the cooking plant he would suffer irreparable financial loss. The court having ruled that an injunction should be granted, it was then suggested that it should extend, not to the whole property, as the proceedings had throughout contemplated, but only to the building presently housing the cooking plant. Since the argument appeared designed to permit the cooking plant or a cooking plant being transferred to another building and activity in connection with a rendering plant continuing, it appeared to the court to be inconsistent with the plea of hardship already advanced and an indication that the defendant had not been candid with the court. It also gave rise to concern that yet more years of protracted legal proceedings could ensue. As a result, the court stated that:

The court has received a letter from solicitors for the defendant recording his intentions as follows:

“The judge’s concern as we understand it is what may happen to the site in the interim whilst Mr Clarke’s application is being determined particularly if the injunction only applied to the buildings housing the current cooking plant as opposed to the site as a whole. In particular he is concerned to know if, in the latter instance, Mr Clarke would attempt to transfer his cooking operation to the other buildings on the site.

Our client is unable to give any categoric assurances in this regard. The advice that he has received is relatively recent and he simply has not had the opportunity to carry out a feasibility study into the practicality of such a move. However, he has little option but to at least explore the possibility of moving the cooking plant elsewhere on site. Accordingly, our client is reluctant to restrict his room for manoeuvre by giving such a categoric assurance.”

The paragraphs of this judgment which now follow from paragraph 5 to paragraph 34 comprise the extempore judgment in an approved form and after editorial alterations.

The defendant’s pig rearing and use of a cooking plant to make swill for the pigs led to a nuisance action being commenced in 1993. Thereafter an application for permission for the erection of a cooking plant was made in October 1998 (No. 882/98). Permission was not sought for a change of use of a building at the property from agricultural to an industrial use. The application was for “… a replacement for that which already exists”. On 25^th February 1999 planning permission was granted for application 882/98. But in March 1999 a five day trial of the nuisance action commenced. The defendant next made a further application (397/99) based upon the grant in 882/98, but for a change of use. In May 1999 that application for permission for the new cooking plant involving a change of use was refused. The refusal was not appealed, but in July 2001 another application for permission (774/01) was made for a “change of use of the existing cooking plant and the ancillary filter bed to rendering plant”. The significance of this, as has been emphasised by Mr Cahill QC, who has appeared for the defendant, is that the market in and indeed the opportunities for using pig swill altered after the Foot and Mouth crisis in the Spring of 2001. The defendant resolved, in the face of a changed position, to have a rendering plant. He would not continue with his pig rearing, but he would have a rendering plant on the site. He believed the proposal gave rise to an industrial use of the property. That the proposal involved a change of use was plain from his application and not was disputed by the claimant. On 9^th January 2002 the claimant refused the application for change of use.

The pigs left in June 2002. In January 2003 a Public Inquiry against the refusal of planning permission for a change of use was held and a decision letter was issued in April 2003 upholding the claimant’s refusal of permission.

The defendant then applied to the High Court under section 288 of the Town and Country Planning Act 1990 to quash the Inspector’s decision, but within a month also made an application under section 191 of the Town and Country Planning Act 1990 for a certificate of lawful use of the rendering plant:

“for purposes not wholly ancillary to agricultural activities associated with Rookery Farm”.

In October he withdrew his section 288 claim, but maintained his claim for a section 191 certificate. That was refused on the basis that, on a proper construction of planning permission 882/98 (including documents incorporated by reference), the lawful use of the cooking plant was restricted to use as an integral part of an agricultural enterprise.

Then in November 2003 he made another section 191 application which was explained in a letter in December 2003 and in June 2004 the claimant again refused the certificate and then proceeded in July 2004 to issue its application for a planning injunction under section 187B.

In July also the defendant filed an appeal with the Planning Inspectorate under section 195(1) against the refusal of a certificate. The sole ground of the appeal was:

“The appellant will argue that the current use of the rendering plant is lawful by virtue of planning permission Register No. 882/98 and the Council are wrong in their determination to refuse this application for a Certificate of Lawful Use or Development.”

In the injunction proceedings the defendant contended that the interpretation of the planning permission should be determined in the context of the appeal regime set out in the Town and Country Planning Act 1990. This defence was struck out for non-compliance with the rules and then a defence was lodged. The defence lodged raised the issue, foreshadowed in the earlier applications, which came before me as a preliminary issue, and which I determined in a judgment dated 7^th April 2005 [2005] EWHC 3099 (QB). An application for leave to appeal to the Court of Appeal, first on papers, then orally, was unsuccessful (see [2005] EWCA Civ 904). It had always been clear that, if successful, the claimant intended to pursue its application for an injunction. It had been accepted before me and was manifest that once the decision on the ambit of the planning permission had been resolved, there would be nothing left in the action to be resolved save whether, in the exercise of discretion, there should be an injunction.

That being the question, the solicitors for the claimant wrote in July 2005 to invite the defendant to submit to an injunction, which they suggested should take effect from 1^st October 2005. There had obviously been some intimation that by that date the defence might be amended, but on 29^th July 2005 the defendant’s solicitors wrote saying:

“We do not at this stage have instructions to apply for an amended defence.”

There then followed attempts by the claimant’s solicitors to fix a date. The matter having been reserved to me, there was need to find an appropriate date. Eventually an initial proposal was made that there should be a hearing on the first open date after 1^st November 2005.

At about the time that order was granted by me, that is, the end of September 2005, the defendant was engaged in seeking a second opinion from leading counsel, who I understand to be Mr Cahill QC.

In November 2005 the claimant indicated that it would be filing its evidence in support of the injunction and that was done on 28^th November 2005. There was then a date fixed for the hearing, 8^th December 2005, but then, because the defendant had received advice which enabled him to reach a conclusion that he could apply to amend his defence, the hearing date was put aside in order for the matter to come back before me on 16^th January 2006.

There is a draft which sufficiently discloses the range of factual material it is proposed should be introduced into these proceedings. If permission to amend was granted, the factual range of material would go to support that which has never been part of the defendant’s case to date. More than that, it would contradict the case which the defendant has maintained for years. If it had been acknowledged as part of his case or known to him as a ground upon which he could continue his activity, one doubts whether he would have applied for planning permission for a change of use. It is now contended as a matter of fact and law that, by reason of the mixed use of the property, an immunity in respect of industrial use or an entitlement by virtue of a ten year industrial use, has arisen to enable some part of Rookery Farm to be used for an industrial use covering the industrial cooking and rendering plant.

The first question is, what procedural consequence should be allowed to flow from the fact that the defendant has been advised he has an arguable basis for asserting that he can carry on the relevant activity by reason of an accrued right in connection with mixed use at the premises over ten years or more?

It is said that the court should, following provisions of CPR, apply its discretion in accordance with the rules in the usual way and it being at least arguable that the facts pleaded give rise to a case for amendment that is all that the court needs to be satisfied about. As a result, permission should be granted for the defence to be amended.

In my judgment that approach to this application to amend is misconceived for a number of reasons. This is not an ordinary situation in which a defendant seeks to amend proceedings prior to trial. In this case it was ordered that the action should proceed by way of a preliminary issue. It was recognised, by both sides, that resolution of the preliminary issue might resolve the action itself. Resolution of the preliminary issue, in accordance with the pleadings, has resolved the issues in the trial. Although the action has proceeded on a preliminary issue, the proceedings have been concluded on all the issues raised by the pleadings and the only outstanding matter is a discretionary matter going to the appropriate form of relief.

On any basis, this is an exceptional application to seek to introduce into the proceedings, after their effective conclusion, issues of fact and law which were not raised at any time before and which, following the normal rules, should have been raised. The abuse of process cases demonstrate that parties to litigation are to bring forward in their litigation all matters which are relevant and could be decided in connection with the issue under consideration. Abuse of process will not be avoided where no satisfactory explanation is put before the court to explain a party’s proposal to rely upon a factual case which is flatly inconsistent with his prior understanding and assertion of the facts.

In this instance, however, Mr Cahill QC acknowledges that, in effect, the defendant wishes to make an application for a certificate of lawful use under section 191. To that end, he has prepared what can be regarded as a preliminary bundle in support of that application. It is a substantial lever arch file of documents in connection with the history of the property. Mr Cahill QC has informed the court that the exercise in compiling the documents to be submitted in support of the section 191 application has not been completed. The total number will extend beyond this single substantial lever arch file. In the light of the foregoing, the court notes, with approval, that the issue will be resolved within the context of the planning regime.

It follows that this application merely seeks, at a very late stage, to incorporate into these proceedings the same factual issues which it is intended should be resolved in the section 191 application. Mr Cahill QC accepts the issues of fact and law will not be resolved in these proceedings, but in the context of the statutory planning regime.

It follows, as I endeavoured to point out to Mr Cahill QC at the outset of his application, this application for leave to amend has to be regarded as a procedural device for contesting the grant of an injunction today. Further, it is wholly unnecessary because, at the heart of this matter, a legitimate basis for resisting the injunction is the simple ground that the defendant can be taken to be advancing, namely that the court ought not to grant an injunction because the defendant believes that he has an arguable case which he wishes to have resolved in section 191 proceedings, that he has, or arguably has, accrued rights to carry on the activity, which the claimant wishes to restrain at the risk of causing the defendant irreparable financial loss and, for that reason, the court ought not grant an injunction, but give him the opportunity to resolve the position within the context of the section 191 proceedings. As I have pointed out, it seems to me that the application to amend is misconceived. In my judgment, it is not a proper way to proceed to introduce issues into these proceedings by way of amendment when it is known that they will not be resolved in these proceedings.

The application for leave to amend being misconceived, is refused.

The real issue which arises is, what approach should the court take to the late discovered awareness on the part of the defendant that he might have a basis for carrying on the activity, which he has carried on without obtaining planning permission, for which it is now asserted he is entitled to do as of right?

It is not, of course, possible for me in the context of this application and indeed it would be wrong of me to make any observation about the merits of the claim. The facts to be investigated extend over many years, but what can be taken to be clear is that, in so far as those facts give rise to any accrued rights, they can only be accrued rights in respect of the buildings which have been on the site over the relevant period.

It is by no means clear to me, and I do not accept Mr Cahill’s submission that the matter is plainly in the defendant’s favour, that, even if he was to succeed in the section 191 proceedings and obtain a certificate, he could introduce into the buildings carrying accrued rights, the new cooking plant, presently standing in a separate building for which he has maintained he obtained planning permission. The new cooking plant for use in connection with agricultural purposes (the pigs) had to meet all sorts of requirements to satisfy the environmental factors to which the use gave rise and, as Mr Lamming points out, this court should not proceed upon the basis that even if the defendant was right in his accrued rights argument as to use, he would necessarily “be home and dry” and be able to carry on that which he is currently carrying on, because the environmental consequences of an industrial use of the site would have to be considered.

I agree that one must be cautious. I am hesitant about concluding that even if the defendant was right, he would be able to carry on what he is presently carrying on without further consent. It is not necessary for me to reach a final conclusion, but the uncertainty is relevant to the exercise of discretion.

So far as the claimant is concerned, the position is plain. This is an application to enforce the planning law under section 187B of the Town and Country Planning Act 1990. As a result of the judgment which presently binds Mr Clarke as well as the Council, a judgment reached on the basis of the pleadings, at the invitation of both those parties, has determined the activity is unlawful. The defendant does not have planning permission for it. He is, of course, entitled to assert that, by reason of his now greater education as to the facts and his illumination of the law received at the hands of new counsel, the conclusion reached in the proceedings is not determinative of his position. But the court has to be mindful of the extent of the indulgence which should be accorded to this defendant after all the opportunities he has had, with all the procedural advantages he has achieved by making various planning applications, not to say the advantage these proceedings have provided. One has to ask whether, having regard to the position in planning law, as it presently stands, it could be right that there should be no injunction. There are interests to which regard must be paid; not only the general position and the consequent public interest in the planning law being upheld, but also the integrity of the planning regime as it would be perceived locally by the inhabitants who have seen, through many proceedings and over many years, various shifts and changes in connection with this site.

This court is not in a position to make any detailed observations about the nuisance action. Suffice it to say there have been committal proceedings and a finding by Sir John Blofeld that, in at least a limited respect, the defendant had been in contempt of court by breaching an undertaking “… not to cause a public nuisance at Rookery Farm, after 31 May 2000”. [At the conclusion of the extempore judgment the court was informed an appeal and cross appeal from a decision of Sir John Blofeld, by which he varied the undertaking given by the defendant in April 1999, was to be heard immediately].

The defendant’s continued use of the site has given rise to continuing complaints, short of nuisance. The report from the Inspector identified environmental consequences falling short of nuisance as regularly occurring. I have concluded, without hesitation, that the time has come for the planning position at this site to be recognised and upheld by way of an injunction.

If it be the case that Mr Clarke has, contrary to all his previous understandings in connection the planning situation at his site, and notwithstanding the advantage that he has had from solicitors and counsel experienced in planning law to resolve these matters, accrued rights to use the site, then he has his rights under the regime to have that determined.

As to the plea of hardship which he makes, through Mr Cahill QC, namely that, in effect, the injunction will take away any opportunity that he has of running the business that he wants to sustain, I am not persuaded by the bare assertion of the position. Further, if it be the position, then his present business has, so far as the courts have concluded, and so far as he has had the opportunity of raising his case on a number of occasions, established that the activity he is currently carrying on, and now wishes to carry on, is unlawful. The defendant has shown himself to be adept at sustaining claims and applications which have been calculated to manipulate the planning regime.

I have no hesitation in saying that there must be an injunction in respect of this matter.

Mr Lamming says, as a matter of indulgence to the defendant, that he should be given some three months to enable him to wind down his business in case there are contractual commitments or other matters which require notice. He does not ask for any shorter period of time. Had he done so it may have been open to him, but he has only asked for three months. In my judgment three months is the relevant period of time.

I have considered submissions from the claimant, submitted in writing after the hearing, and going to the question of whether the injunction should be limited to the cooking plant situated in the new building at Rookery Farm or whether industrial rendering at the planning site (the whole of Rookery Farm) should be restrained.

The injunction should not extend beyond that which was properly raised in the proceedings as the relevant area in respect of which it was expressly acknowledged by the defendant that he required permission for a change of use. The defendant asserted that the grant of planning permission in 1999 (Ref. 882/98) permitted industrial use and on 2^nd July 2001 the defendant applied for a change of use of the cooking plant to a rendering plant (Ref 774/01). The site plan for that application was identified as “the red line” site area, which included only the new cooking plant building and filter bed (plus a small yard area surrounding them) and the access track leading to Woolpit Road. The injunction is granted limited to that area, namely that covered by the 2001 application.

I have reached this conclusion with reluctance because it seems possible that the defendant will start rendering elsewhere on the site. Should that occur, I observe: