Tewkesbury Borough Council v Brown & Ors

The Claimant in this case is Tewkesbury Borough Council (“the Council”). In this action they seek an injunction pursuant to section 187B of the Town and Country Planning Act 1990 (“the Act”) in relation to the land specified in the draft order. The land is a field at Aston Cross, Ashchurch near Tewkesbury. It is adjacent to the A46 trunk road which provides the only direct access into and out of the field.

The 1^st Defendant is a farmer who owns the land. The 2^nd to 16^th Defendants are the adult members of eight families who are living on the land in breach of planning control. (Footnote: ¹) They moved onto the land on or about 3 February 2006 in circumstances which I shall shortly summarise. They are travelling show people. They are occupying the land, living there in their large caravans or residential trailers in breach of planning control. Since about July 2006 some of them have also brought large lorries and fairground equipment onto the site.

On 25 April 2006 the Council resolved that an application for an injunction pursuant to s 187B of the Act should be made. The application was issued on 16 August 2006. Personal service was effected upon the 1^st Defendant and upon a number of the other Defendants, including the 6^th Defendant Mr Joseph Jones who has been the principal spokesman for the showpeople living on the land, both in their dealings with the Council and at the hearing before me. On 19 September 2006 an order for substituted service was made by Calvert-Smith J, with the consequence that all 16 Defendants are deemed to have been duly served.

The application was listed before me in the Interim Applications Court on 5 October 2006. It seemed that there had been a misunderstanding in relation to the time estimate for the hearing. The Council were represented by Mr Pereira of counsel, supported by his Instructing Solicitors and a number of representatives of the Council including Mr Winstone and Mr David Jones. Though the 1^st Defendant did not attend and has played no part in the proceedings, many of the remaining Defendants had travelled from Gloucestershire to attend. I enquired whether they wished to apply for an adjournment to seek legal advice and representation but they did not. In the circumstances I considered it right to proceed with the substantive hearing on 5 and 6 October.

The background to this application is that until February 2006 the showpeople and their families had occupied another site within the Council’s area, namely the “Showlands” site at Evesham Road, Gotherington, likewise in breach of planning control. That site had been bought by one of the showpeople, Mr Appleton (Footnote: ²), in about 2001. They occupied it together with a number of other showpeople families, some of whom moved from the site somewhat earlier than those who left it on 3 February and moved to the Aston Cross land. Mr Appleton made a number of unsuccessful applications for planning permission for the Showlands site. An enforcement notice was served, against which the showpeople made an unsuccessful appeal, determined by the Inspector on 30 October 2002. The Inspector however allowed a further period of 9 months for compliance with the enforcement notice, in the light of the absence of suitable alternative sites and the hardship to the families, particularly the schoolchildren amongst them, if they were required to vacate the Showlands site at an earlier date. That period expired on 30 July 2003.

In the event the Defendants did not vacate that site for a further 2 ½ years. Their eventual departure occurred after a long series of court hearings. In October 2003 the Council sought an injunction pursuant to s187B in relation to the Showlands land. A very detailed officers’ report was before the Committee, reviewed in detail by Hodge J in his judgment dated 12 October 2004. The judge, who was assisted both by counsel for the Council and the showpeople, concluded in a lengthy judgment that an injunction should be granted. He carefully directed himself in accordance with South Bucks District Council v Porter [2003] 2 AC 558. He took all relevant considerations and arguments into account. Having regard to the circumstances of the families, including those of the children in school who (he was told) would have their education disrupted by compliance with the injunction, he decided to allow until 4 April (a period of nearly 6 months) for the site to be vacated, with a further specified period for landscaping restoration work.

Again the showpeople did not all comply. Some left the site, including Mr Appleton, but the Council sought the committal of others for breach of the injunction. The application was heard by Wakerley J, who gave judgment on 4 July 2005. The judge refused an application by the Defendants for a variation of the injunction, in the absence of any new material before the court, and having heard fresh argument as to the hardship to them and their families if they were forced from the site. Thereupon a number of undertakings were given by the Defendants to comply with the injunction within a further 3 months, at which the application to commit them for contempt was adjourned generally with liberty to apply.

Once more there was failure to comply, with the result that the Council made further applications for committal for breach of the injunction. At a hearing before Stanley Burnton J on 28 and 29 November 2005 the Defendants were unrepresented but a number of them appeared in person. The judge heard moving submissions as to the hardship to them and their families, summarised by him in paragraphs 23 and 31 of his judgment. But he held that in the light of the history and duration of their occupation of the site in breach of planning control, he was left with no alternative but to commit the male Defendants for 28 days, suspending that order until 24 January 2006 to allow a final opportunity for the site to be vacated. At a further hearing on 16 January 2006, on the application of three of the Defendants who had not left the site, a final further extension of 10 days was granted.

The proceedings leading to the removal of the showpeople from the Showlands site came to the attention of the 1^st Defendant Mr Brown, who permitted them to move almost immediately onto his land at Aston Cross, which they did on 3 February 2006. This is not far from the Showlands site, and the children of the various families did not have to change their schools. The Defendants are, however, likewise occupying this land in breach of planning control, as they undoubtedly realised since the site is an open agricultural field, adjacent to a trunk road, in open countryside near the small settlement of Aston Cross.

This led the Council officers to move swiftly to recommend to the Committee that injunction proceedings be instituted pursuant to s187B of the Act. The report to the Planning Committee (p141-145) was very much shorter than those which had been submitted in relation to the Showlands site, but understandably so in the circumstances. It drew attention to the history which I have summarised; to the nature of the site, the absence of planning permission for residential use and the fact that such use conflicted with the relevant part of the Local Plan; and to the dangers associated with access to and from the site. It drew attention also to the Human Rights Act and to the need to balance the interference with the homes and private lives of the occupiers of the land against the public interest in bringing such occupation to an end.

The full minute of the meeting of the Committee is at p.158-160. It shows that the officers’ recommendation was debated at length. A number of representations had been made by and on behalf of the showpeople, that they had nowhere else to go and that removing them would have serious consequences to them and particularly to their children. The 1^st Defendant had written to explain why he had allowed them to move onto his land, adding that his action had the support of those living in the vicinity who shared his sympathy towards them. A number of members expressed strong views that officers of the Council should do more to help them to find a suitable alternative site. In the result, the Committee resolved to defer enforcement action for 2 months in the hope that a resolution could be found. In the meantime, the Defendants were to be asked not to use the direct access into the land from the main road, but to use the alternative access route from the B4079, a route which involves passing across other land forming part of the 1^st Defendant’s farm. This request was made by letter. Mr Jones assured me that it was complied with, though the Council suggest otherwise; this is not an issue which I need to resolve.

On 1 March 2006 the Second Defendant Mr Castle wrote to the Council asking for the setting up of a Council working group to carry out an evaluation of sites within the Council area to assess whether they might be suitable for the grant of planning permission for use as showpeople’s quarters. This request was carefully considered on 11 April by the Housing and Environmental Committee of the Council, who were advised by the Borough Solicitor in a detailed report that it should be refused. In particular, concern was expressed about any process which might give preference to those showpeople who had occupied the Showlands site and that the Committee must not risk compromising the integrity of the planning process. It was pointed out that the Council could continue to assist the showpeople, as it had done over a long period, both by advising on the obtaining of sites and by holding pre-application discussions in relation to sites which may become available. The Committee accepted this advice but also resolved that a group of councillors be set up to consider the needs of travelling communities in the Borough and to meet their representatives.

In 2006 two planning applications have been submitted by the 2^nd Defendant in relation to other sites for use as travelling showpeoples’ sites. One was for land at Shurdington Sand Pit, a green belt site previously used for sand extraction and in relation to which an enforcement notice was in place for the land to be restored to agriculture. That application was refused on 27 June. The other was for land at Toddington, an open green field site. That application had not been determined at the time of the application for an injunction but has since likewise been refused as being in conflict with established planning policies.

On 25^th April the Planning committee resolved to proceed with the present injunction application pursuant to s187B of the Act. The report before the Committee reviewed the steps which had been taken since the 2-month deferral, including the establishment of the councillors’ working group, but recommended that the planning and highway objections to the continued occupation of the site by the showpeople were such that the application should proceed. This recommendation was accepted by the Committee.

Before turning to the arguments in any detail it is necessary to set out the principles upon which I must act. Section 187B of the Act reads as follows:

“(1)

Where a local planning authority considers 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.”

This is a jurisdiction which must be exercised with great care pursuant in particular to the principles contained in the case of South Bucks District Council v Porter and another [2003] 2 AC 558 (“Porter”). The House of Lords there upheld the decision of the Court of Appeal which had allowed a number of appeals by gypsies against injunctions granted to local authorities under section 187B of the Act preventing them from living in mobile homes and caravans on sites for which planning consent for residential use had been refused.

The principal argument before the Court of Appeal was that the courts granting the injunctions had failed to consider, properly or (in some cases) at all, the effects of the injunction on their human rights in accordance with section 6 (1) of the Human Rights Act 1998 and in particular Article 8 of the Convention, which provides that everyone has the right to respect for his private and family life, his home and his correspondence and that there should be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society for the protection of the rights and freedoms of others.

It is clearly established that I must exercise a judicial discretion in the light of the principles set out in paragraph 38 of the judgment of Simon Brown LJ in his judgment in Porter in the Court of Appeal [2002] 1 WLR 1359. In paragraphs 38-40 of the judgment, at p1377-8, he said this:

“38.

I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era “entirely foreclosed” at the injunction stage. Questions of the family’s health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reach on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

39.

Relevant too will be the local authority’s decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly pose and approached the article 8(2 ) questions as to necessity and proportionality.

40.

Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.”

Simon Brown LJ went on to comment further on proportionality, concluding:

“Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the safeguarding of the environment – but also that it does not impose an excessive burden on the individual whose private interests - here the gipsy’s private life and home and the retention of his ethnic identity - are at stake.”

The submission of Mr Pereira for the Council is straightforward. There are very strong public interest reasons for the showpeople to vacate this site. They knew from the start that they were occupying it in breach of planning control. There has been no material change of circumstances since their cases were very thoroughly considered, both by the Council in resolving to pursue and pursuing the injunction proceedings for the Showlands site, and by three High Court Judges who heard those proceedings at their various stages.

The 1^st Defendant Mr Brown took no part but Mr Jones addressed me at length on behalf of himself and the other showpeople. He was supported particularly by Mr Scarrot and Mr Whiteleg who addressed me briefly. They provided me with a valuable bundle of documents in support of their argument that I should hold back from the grant of an injunction. These documents included email communications between councillors and officials; documents concerning other sites which the showpeople considered might be, or might have been, suitable sites for occupation by them; and letters from head teachers and from the County Council’s Support Teacher for Traveller Pupils, all emphasising the serious consequences of the inevitable disruption to the children’s education should they be required to leave their present schools.

Mr Jones told me that he and his colleagues gratefully moved onto the site when it was offered by the 1^st Defendant who came to their rescue; otherwise they would have been forced to occupy lay-bys on the side of the road. It was recognised that the site was not suitable for long-term occupation, but he and his colleagues were making continuous efforts to obtain an alternative site. They only wanted to stay there for a short period to enable other planning applications to be resolved, including an appeal against the refusal of permission for the Toddington site. Furthermore, meetings and discussions had taken place with the Council, right up to the date of the hearing. The last site to be considered, at a meeting on 4 October 2006 (the very day before the hearing) was the former MAFF site at Station Road, owned by the Council, which had seemed entirely suitable to the showpeople as temporary quarters. In a letter following that meeting, Mr David Jones (Head of Development and Building Control) set out in detail the planning objections which made the site unsuitable for such use, and indicated that the Council had other plans for the site. I was told by the Council that they expect to implement those plans by the end of March 2007.

I was shown photographs of that site, which has ample concrete hard standing but a narrow access route. I well understand the showpeople’s frustration that it cannot be made available to them, but the Council cannot be obliged to provide its own land for their use.

Mr Jones, supported briefly and emphatically by Mr Scarrot, said that they had nowhere else to go. If they had to live at the side of the road the children would be in danger. If they had to move from the area the children’s schooling would be disrupted. In the modern age the children need a much better and more settled education than they and their forbears enjoyed. I was also told of a number of health problems affecting family members within the group.

Mr Jones argued that the Council had not done all it could and should have done to assist the showpeople to resolve their problem of finding a suitable site. He challenged the findings of the 2003 Working Group, reviewed by Hodge J in his judgment at paragraphs 19-22, that there was no established evidence of need. He argued that the situation in which they now find themselves is itself evidence of need, an argument described by Hodge J (as paragraph 42) as circular.

In this context I was told that pursuant to section 225 of the Housing Act 2004, Gloucestershire County Council has now embarked on an assessment of the accommodation needs of gypsies and travellers in the county. I was shown letters to Mr Jones relating to this assessment, from the County Council dated 27 September 2006 and from the Council dated 15 September 2006. The Aston Cross families are to be included in this assessment which it is hoped will be concluded by the end of 2006.

Mr Jones also referred me to a number of sites within the Council’s area which he and his colleagues considered suitable but had not been made available to them, including Newton Farm, Ashchurch, Toddington Sawmills and other sites which had been considered by the Working Group in 2003.

I return to the judgment of Simon Brown LJ in Porter and to the considerations which I must have in mind in deciding whether an injunction should now be granted. My starting point is that this use of the land is a clear breach of planning control; there can be no question of planning permission being granted for such use of this site even on a temporary basis. Quite apart from the damaging environmental impact, the highway objections are clear and powerful. This is therefore not a case in which there is any possibility of the Council reaching a different planning judgment in relation to the site.

I am satisfied also, having examined the reports to the Planning Committee in both February and April and the minutes of the February discussion, that the Council arrived at a proper decision to take proceedings for an injunction. Forceful views were expressed on both sides and the officers’ recommendation was not adopted without being tested and questioned. Mr Pereira rightly drew my attention to the fact that the officers’ reports to the Committee did not include any lengthy discussion of the welfare and human rights considerations which they needed to have in mind, though they did draw attention to the fact that any interference with the homes and private lives of the occupiers of the land had to be balanced against the public interest, particularly public safety and the protection of the environment. It is apparent from the judgment of Hodge J (paragraphs 26-27) that the very lengthy 2003 report to the Committee (in relation to injunction proceedings for the Showlands site) dealt with these issues in great detail. I have no doubt that in resolving to take the present proceedings the Committee were fully aware of and took into account the inevitable disruption and impact which will be involved in the removal of the Defendants from the site.

It does not follow that I must issue the injunction; I must form my own judgment on the proportionality of such a decision, bearing in mind all relevant considerations including the hardship to the Defendants and their families and the prospect of having to enforce the injunction, if necessary by committal to prison. I may take into account, but not be bound by, the decisions of the three judges who dealt with the Showlands issue.

Both with and without the benefit of hindsight, I am in fact satisfied that those three judgments were correct. Like Stanley Burnton J, I was moved by the submissions of Mr Jones, Mr Scarrot and Mr Whiteleg. I recognise how difficult the Defendants’ position is and that they have devoted much effort, both in discussions with the Council and independently, to find a suitable alternative. I recognise the depth of their concerns for their families, particularly for the schoolchildren. But against the history of the prolonged Showlands litigation and its eventual enforcement, no doubt at great cost to the Council, their action in moving directly onto the Aston Cross site was in my view an immediate and flagrant breach of planning control, however welcome it was to them to receive the 1^st Defendant’s hospitality.

I do not accept the criticisms of the Council, advanced so forcefully (albeit at all times courteously) by Mr Jones. In my judgment they have, whilst properly taking steps to remove the show people from unsuitable sites which they have unlawfully occupied, done all that can reasonably be expected of them to advise and assist them. The fact that no long-term solution has yet been achieved is not their fault. As is apparent from the continued activity right up to the time of the hearing, they have not turned their backs on the problem. It may be that the current County Council assessment of need, in which the Council is participating, will lead to a change of approach to the show people’s benefit. But the position at Aston Cross is urgent, and at the present stage I am not persuaded that the grant of an injunction is improper or disproportionate.

Sadly I must say also that in the event of non-compliance I would, like those three judges, be ready to invoke the court’s powers of enforcement, including committal to prison, if the need arose. The history speaks for itself.

There remains the issue of timing. The Defendants, not unnaturally, urge me to give them as long as possible to vacate the site. They say that in the meantime they can and will use only the access from the B4097 rather than the field entrance on the A46 trunk road. The Council argue that after the protracted history at Showlands, it is better to be firm now and to grant no more than 28 days. The alternative access provides no answer, since it crosses at least one field and will become muddy and impassable in the winter months; the risk is that the Defendants will then construct some form of roadway as occurred at Showlands where substantial site development was carried out.

I am conscious of the time of year. I am conscious that two years ago, on welfare grounds, Hodge J granted 6 months for compliance to take place by Easter 2005. But I take into account also that even then, only partial compliance occurred and the subsequent enforcement proceedings ensued. I regret that I am left fearing that history will repeat itself.

I do not wish to risk disrupting the children’s schooling in mid-term. But for this consideration I would have been ready to accept the Council’s suggestion. As it is, the injunction will take effect one week into the New Year, on 8 January 2007, and save for these changes to the timing, and the reference to residential trailers in clause (ii)will be otherwise in the terms contained in the draft, namely that the Defendants:

Thus the operation of the injunction will be suspended until that date. In the meantime I share the Council’s serious concern about the A46 trunk road access onto and off the site, and intend to make it a condition that the Defendants do not use it so as to give rise to any risk to road users. The precise terms of this condition will need some discussion. Even though the alternative access via the B4079 may be practicable for use by cars and vans, it may be impracticable for some of the larger lorries and fairground equipment now on the site. If so, provision will have to be made for such vehicles to leave the site (though not to return to it), and I have in mind allowing them be driven safely out onto the main road in the hours of daylight only. I shall be grateful if the Council or their solicitors would discuss the terms of such a provision with Mr Jones and his colleagues. As for cars and vans, Mr Jones assured me that these will be able to use the B4079 access onto and off the site without needing to construct any form of roadway across Mr Brown’s fields, and I am ready to accept that assurance.