South Bucks District Council v Smith & Anor

The Claimant in this case is the South Bucks District Council (“the Council”). In this action they seek an injunction pursuant to section 187B of Town and Country Planning Act 1990 (“the Act”) in relation to the land specified in the draft order. That land is known as 1 The Warren, Rowley Lane, Wexham, Buckinghamshire. It lies within the Metropolitan green belt. The Defendants are Andrew Smith and his son James Smith. Andrew Smith is 68 years of age. He has lived on the land, mostly in a caravan or mobile home, for upwards of 30 years. James Smith, now in his late 30s, moved onto the land with his family in 1999, having been evicted from a site which he had previously occupied as a result of a Compulsory Purchase Order on that site. Presently the First Defendant lives in a caravan with his wife Alice, a lady in poor health aged 65. The Second Defendant and his wife and four children, who include two children of school age and one child aged under two years, occupy two other caravans on the site.

Both the Defendants claim to be gypsies, I use the expression “claim to be” not out of disrespect but because the status of the First Defendant as a gypsy has not been unchallenged in the course of the history. In July 2000 the Council made a previous claim for an injunction pursuant to section 187B against him as the sole Defendant. Giving judgment on that application, and granting the injunction, which was never in the event enforced, Mr Justice Brian Smedley held that at that time the First Defendant was not a gypsy within the definition of section 16 of the Caravan Sites Act 1968 in that he was not then “a person of nomadic habit of life whatever his race or origin”. On the evidence at that time Mr Smith had not carried on a nomadic way of life for many years although he from time to time attended gypsy horse fairs and events of that sort. Furthermore, for at least seven years he and his wife lived in bricks and mortar, in that he occupied a bungalow-style building on the site described as the tack room. His gypsy status had been challenged by the Council since at least 1994, when on his appeal against a refusal of planning permission the Inspector found that he had for many years not been a person of nomadic habit of life.

As of today however the position has changed. At the heart of the argument before me is the Government Circular issued by the Office of the Deputy Prime Minister (“ODPM”) as recently as 6 February 2006. By paragraph 15 of that circular councils are enjoined to treat as gypsies and travellers

“persons of nomadic habit of life whatever their race or origin including such persons who on grounds of only their own or their family’s or dependants’ educational or health needs or old age have ceased to travel temporarily or permanently……..”

It is accepted by Mr Bird on behalf of the Council that under this definition the First Defendant should be treated by me as qualifying for the description “gypsy”.

Thus the Defendants not only live on the site but run a business there. The business is primarily one of scrap metal recovery and dealing. They have vehicles, equipment, skips and the like for the purposes of that business. They are also horse breeders and there are permanent structures on the site in the form of a stable block and the tack room. They do not however live in any of those buildings but in the caravans stationed on the site.

The plan of the site attached to the draft order shows a long, narrow strip of land leading south from Rowley Lane. At page 483 of the bundle of documents is an annotation showing the way in which the site is sub-divided. Closest to the road there is a paddock area, the middle section includes the stable block and the tack room and the position of the caravans is depicted on the plan in that middle section. Towards the rear of that section are a paddock and further stables. Beyond the stable block, furthest from Rowley Lane, is the yard area where the scrap metal business is conducted. On the evidence it is clear that those uses have been carried out on this land for very many years. The paddock area nearest to the road, of which I have seen some photographs, is unspoilt and rural in appearance, but it is not challenged that the residential caravans further from the road are visible to the general public from Rowley Lane.

The site has a very substantial planning history. It is undisputed that for some 30 years the First Defendant and his wife, and in more recent years the Second Defendant and his family, have lived on the site in breach of planning controls. There has never been any planning permission in place for residential accommodation on this green belt site.

I summarise the history by reference to the agreed chronology supplied by Mr Bird on behalf of the Council.

The First Defendant bought the land in 1974. In 1975 an enforcement notice was served on him by the then Council requiring the cessation of use of the land for the siting of caravans. In 1977 his appeal against the enforcement notice was dismissed on the grounds that the presence of the caravans caused substantial harm to the predominantly rural character of the area and to green belt policy. Over the ensuing years he was convicted on five occasions of offences of breach of the enforcement notice. A fresh enforcement notice was served in 1982, the first Defendant again appealed and at that time was offered a vacant pitch on the Council’s Hollow Hill site, which he declined. In 1988 a further enforcement notice was issued by the Claimant relating to a change of use of a building on the land being used as a dwelling house, the caravans at that stage having been removed from the land. Once again, the First Defendant appealed unsuccessfully. The Inspector concluded

“It is sites such as this that are on the fringe of a built-up area which are most at risk from development pressures and therefore are important to the green belt concept”

The Inspector went on to say that irrespective of any claim to gypsy status no exception to green belt policy was justified since alternative accommodation had been offered and was available.

In June 1993 the Claimant obtained an injunction restraining the continued use of the building as a dwelling house and the First Defendant and his wife undertook that after 28 days they would not use the land and premises for the stationing of caravans for residential purposes. He thereafter sought retrospective planning permission for the continued use of the tack room for residential purposes. The application was refused and his appeal against that refusal was dismissed. The Inspector concluded on that occasion

“This is already a fragmented area of green belt under great pressure for further development. I consider that the location of a permanent residential use with all that goes with it would harm the appearance of the countryside.”

He also remarked that there was spare capacity on another Council site and subject to the gypsy status of the first Defendant being confirmed the Council would consider offering alternative accommodation in the event of a serious request being made.

Thereafter the First Defendant made an unsuccessful application to the European Court of Human Rights, which was dismissed by the European Commission. On 13 July 2000 the Claimant obtained an injunction requiring the First Defendant to cease to use the land and buildings for residential purposes. A nine month moratorium was allowed to April 2001. That date was further extended pending the appeal which he then made against a further refusal of planning permission, this time to use the land as a small site for residential caravans.

That appeal was twice dismissed by the Secretary of State, first on 8 November 2001. The Secretary of State relied in part on a passage in the report of the Inspector indicating, wrongly as it later transpired, that other land owned by the First Defendant within the Slough Borough Council area might become available to him for residential use. Because it later became clear that this was not so, the decision dismissing the appeal was quashed by consent in the Administrative Court and the appeal was remitted for re-determination.

No further hearing was required and thus no fresh Inspector’s report was prepared, but the Secretary of State invited and received representations on a number of matters. By his re-determination he again dismissed the appeal; the dismissal letter being dated 17 August 2003. It appears that the Council was not notified of this decision until they made enquiries of the ODPM in February 2004. Thereafter the Council made extensive enquiries of the Defendants through their solicitors. Some delays occurred in the provision of information, but it became clear that the use of the land and the continued residential occupation of caravans on the land were continuing unchanged.

It was at this stage that the Council officers, having taken counsel’s opinion, decided to proceed towards making a fresh injunction application under s 187B of the Act. The Defendants’ solicitors were so notified, and on 6 June 2005 they submitted detailed written representations, with a number of supporting documents, to be placed before the Planning Committee at its meeting on 29 June. At the outset of their representations and in the covering letter the solicitors asked the Council to defer consideration of seeking an injunction until the new national guidance came into effect, at which time their instructions were to make a fresh planning application. The minutes of the meeting record that the Committee were not prepared to defer this decision to a later meeting.

On 29 June 2005 the Planning Committee of the Council duly passed the resolution to apply to the High Court for an injunction against the Defendants under section 187B of the Act, requiring them to remove their caravans and vehicles from the land and restraining them from using the land for residential purposes.

On 2 February 2006 the ODPM issued a Circular (01/2006) to local authorities setting outs its revised police in relation to Planning for Gypsy and Traveller Caravan Sites. On 7 February 2006, a fresh fully detailed planning application was lodged with the Council on behalf of the First Defendant and his family. As indicated in their letter of 6 June 2005, the First Defendants awaited the publication of the Circular before lodging the application.

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.”

These principles are helpfully summarised in paragraph 4 of the Claimants’ skeleton argument, in terms which are agreed between counsel. Mr Bird adds a further proposition to the effect that

“injunctions which should otherwise be granted under s 187B should not generally be suspended by reference to the expected result or duration of the planning process”.

This comes into play in the present case because of the fresh planning application made on 7 February 2006, to which I shall return. Mr Willers for the Defendants does not accept the proposition as it stands, but it is common ground between counsel that I must have regard to the speech of Lord Scott of Foscote in Porter at paragraph 100 where he said:

“In deciding whether or not to grant an injunction under section 187B the court does not turn itself into a tribunal to review the merits of the planning decisions that the authority, or the Secretary of State, has taken. The purpose of the injunction would be to restrain the alleged breach of planning controls and the court could not in my opinion properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken. If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions. ”

On this point, giving the leading speech in Porter, Lord Bingham of Cornhill said this at paragraph 30:

“Nor need the court refuse to consider the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show”.

The discretion to grant or refuse an injunction under s187B is an original one; this is not akin to a judicial review of the decision of the council, either the decisions to refuse the various applications for planning permission or the resolution to seek the injunction.

But for the matters relied on by the Defendants, arising from the issuing of the Government Circular 1/06 on 2 February 2006 and the consequent lodging of a fresh application for planning permission on the following day, Mr Willers came close to conceding that all the preconditions for the grant of an injunction to the Claimants are met. Thus he impliedly acknowledged that the planning merits of the Council’s case are strong and that there is no evidence at present to counter that of Mrs Carter. The site lies in the green belt. The planning history is strongly against the Defendants’ case. On each occasion when planning permission for residential occupation has been sought, it has been refused on planning grounds, there being no “very special circumstances” justifying the grant of permission within the green belt. Inspectors and Secretaries of State have consistently held this line. The First Defendant has lived on the site without planning permission for very many years, and the Second Defendant moved onto the site with full knowledge of the unlawfulness of that residential use.

I am particularly referred to the most recent of those decisions, that of 17 August 2003, when the Secretary of State made his second determination dismissing the appeal against the latest refusal of planning permission. In that determination he expressly took into account the questions of hardship and the availability of alternative sites, the Defendants having had and having taken full opportunity to state their case for planning permission. He based his decision largely on the Inspector’s report of 13 September 2001, with the exception of the references in that report to the availability of the land at Slough which had proved to be wrong.

It is clear also that the Planning Committee of the Council, in resolving on 29 June 2005 to seek an injunction under section 187B, fully considered all relevant matters including the human rights and hardship issues. This is apparent from the planning officer’s careful and detailed report to the council and from the minutes of the meeting which passed the resolution. Though the report contained the officer’s firm recommendation in favour of the resolution, I find that it was fair and balanced in putting the other side of the case, as indeed it had to be. Thus the fact of the resolution carries considerable weight in favour of granting the relief sought.

It is of some persuasive force also that Brian Smedley J in 2000, in a fully considered judgment, was persuaded to grant a similar injunction against the First Defendant. Though he held in that judgment that the Fist Defendant was not a gypsy, this was not the only ground for his decision. His judgment pre-dated Porter, but he did give consideration to Article 8 of the Convention and to the questions of health and hardship involved in removing the First Defendant and his wife from the site.

Mr Willers will not have made his concession without careful thought. A mere glance at the bundle of authorities is enough to show that both counsel before me have great experience in planning matters in general and gypsy cases in particular. I appreciate his helpful frankness, and indeed the assistance I have received from both counsel.

It was, of course, not a formal concession such as to absolve me from the need to consider all the Porter principles before deciding to grant the injunction. In particular, Mr Willers emphasised the principle 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 questions of the family’s health and education will inevitably be of relevance.

On the facts of this case, I would not have been deterred from granting the injunction by either of these considerations. The unlawful occupation has been so prolonged and flagrant, despite the use of all reasonable measures on the part of the Council to bring it to an end, that I would have held that the Defendants have reached the end of the road. The First Defendant is 68 and suffers a blood disorder which requires medical treatment but does not impair his activities of normal life. His wife’s health is much more fragile, but she is not a Defendant and her daughter-in-law (wife of the Second Defendant) cares for her and would undoubtedly continue to do so if their menfolk had to be committed to prison as a last resort to enforce the order of the court. The education of the Second Defendants’ school-age children already suffers through their inconsistent school attendance because of their travels as a family away from the site, and I am not satisfied that this is a sufficiently powerful consideration to lead me to stay my hand. The evidence suggests that if removed from the site, the family would find somewhere to live (whether lawfully or unlawfully) near enough to continue to operate their business on the site, in which event the children would still not be far from their present school in Stoke Poges.

What then is the impact of the two recent developments, the issue of the Government Circular 1/06 and the fresh application for planning permission? Does the Defendants’ position in relation to planning permission remain as hopeless as it has always been? If so, for the reasons which I have given, I would grant the injunction. If, on the other hand, there is now a realistic chance, more than a merely fanciful one, of planning permission being obtained, the balance may be struck the other way.

There are three aspects of the Circular to which Mr Willers draws attention. Firstly, the effect of the revised definition of a gypsy is to accord the First Defendant gypsy status once again, a status from which he has never accepted being excluded. Thus, when the Council makes its Gypsies and Travellers’ Accommodation Assessment (“GTAA”) following the guidance in the Circular, to comply with its obligations under the Housing Act 2004, the First Defendant as well as the Second Defendant will be included. Since at least 1994 the Council have not regarded him as a gypsy, with the result that he would not have been allocated a gypsy site even if he had applied for one.

Secondly, Mr Willers points to the process which the Council (and other local authorities) will now have to undertake in compliance with the Circular, which may lead to the establishment of a larger number of available gypsy caravan sites to which the Defendants might be able in due course to move.

Thirdly, attention is drawn to the passage in para 45-46 of the Circular as to the circumstances in which temporary planning permission may be appropriate to authorise a continuation of the status quo pending the provision of further alternative sites.

In the light of the Circular the fresh application for planning permission has now been made. Against the history of previous applications this has been understandably attacked as a further stalling tactic, issued as it was only a week ago long after the hearing of the application had been fixed. On the facts, that criticism is misplaced. In June 2005 the Defendants wrote by their solicitors making detailed representations why the Council should not resolve to seek an injunction in advance of the Circular being issued. They indicated then their intention to make a fresh application once the Circular was issued. The Circular had already by then been issued in draft as a consultation paper, and its publication in final form has been expected since the autumn. I am told that the reference to temporary planning permission in paragraph 45 of the Circular was an addition from the consultation paper which preceded it.

I have come to the conclusion that despite the long and consistent history of refusals of planning permission for this green belt site, it cannot be said that the Defendants’ position is now hopeless. I reach this conclusion partly because of the subsequent history of the Porter site, after the decision of the Court of Appeal in Porter quashing the s187B injunction against Mrs Porter and others. The Council having again refused planning permission, Mrs Porter succeeded on appeal to the Secretary of State, whose duly appointed inspector granted conditional planning permission personal to her, on hardship grounds. That decision was challenged by the Council, unsuccessfully to the Administrative Court then successfully to the Court of Appeal, whose decision was itself reversed by the House of Lords (South Bucks DC v Porter (no.2) [2004] UKHL 33 so that her personal planning permission remains in place.

Mrs Porter’s case has a number of similarities to the present case. She owned the site. She had lived on it without planning permission for very many years. But since her hardship claim had not been based on factors which owed anything to the length of her residence on the site, the unlawfulness of her occupation played little part in the Inspector’s decision. The hardship claim was a personal one based on her state of health. In the present case there is evidence of the poor health of the First Defendant but more particularly of his wife, fuller details of which will be relied on in support of the application.

I have been referred to two gypsy cases in which personal circumstances were held to justify planning permissions being granted within the green belt, both decisions surviving challenges by the local authority before the Administrative Court. These are Basildon DC v Secretary of State[2001] JPL 1184 (Ouseley J) and Basildon DC v Secretary of State [2004] EWHC 2759 (Admin) (Sullivan J).

I take note also that another of the Defendants in the South Bucks case was subsequently successful in obtaining planning permission, as was the Applicant in Chapman v United Kingdom [2001] EHRR 18 who had taken her case to the European Court of Human Rights.

I cannot say how strong is the Defendants’ prospect of planning permission being eventually obtained. I am expressly not making a planning decision myself. My task is to exercise the discretion whether to grant an injunction, and if so on what terms. Whereas I am satisfied that but for the planning permission situation an injunction should be granted, I am persuaded that it should not take effect until the fresh planning application is finally disposed of, including any appeal against refusal by the Council.

It seems to me likely that if planning permission were eventually be to be granted, it would probably be only conditional, either temporary or personal or both. In this connection I have had regard to the decision of Harrison J in Lee v First Secretary of State [2003] EWHC 3235 (Admin) holding that before refusing planning permission altogether the relevant authority (in that case the Secretary of State) should address the question whether temporary planning permission should be granted.

In the present case the question of temporary planning permission was given a brief mention in the Inspector’s report, in the section dealing with Human Rights. He said:

“The objections to the proposal concerning impact on the openness of the Green Belt and the character of the countryside are serious ones and cannot be overcome by granting a temporary permission. The public interest can only be safeguarded by the refusal of permission.”

I am not sure that this reason sufficiently addresses the question of temporary permission, but I remind myself that I am not engaged in a process of judicial review of the Inspector’s report or of the Secretary of State’s decision. The Secretary of State did not expressly advert to this point in his refusal letter.

I do not overlook Mr Bird’s submission that considerations such as the availability of alternative sites, or the future provision of further gypsy sites, are irrelevant in this case because history shows that the Defendants would never move to such sites anyway. Thus, as I understand his submission, they would not be taken into account in the decision on the fresh planning application. I do not think this necessarily follows. The decision will be taken in the light of circumstances at the time, including the results of the GTAA assessment and the Council’s decisions as to any further sites to be made available, which may or many not be of a sort acceptable to the Defendants, or at least preferable to the stark alternative with which they would then be faced. What the Defendants will do then is a matter of speculation.

Returning therefore to the general principles to be applied, I attach all due weight to the history of the site, the history of previous planning decisions, the unlawfulness of the Defendants’ continued occupation of the site and the public interest in enforcing planning control in the public interest. I accord all due respect to the balance which the Council have struck between public and private interests in resolving to seek the injunction. But I must balance these against the degree of hardship to the Defendants and the family which will arise from the operation of the injunction, so as to assess whether the grant of an injunction taking effect in advance of the planning permission decision is a proportionate response to the need to safeguard the environment whilst not imposing an excessive burden upon the Defendants and their family whose private interests are at stake.

As I say, but for the recent developments I would have struck this balance in favour of the Council, granting the injunction but allowing a reasonable time for compliance; Mr Bird proposed 6 months, which seemed a reasonable period for the Defendants to make alternative arrangements. But so long as there remains a real, even if not a good, chance that they may in due course obtain planning permission (even if only temporary or personal) pursuant to their current application, in my judgment the balance swings the other way.

I cannot see the need to remove the caravans from the site as so urgent and pressing, now after all these years, as to require it to proceed in advance of that final determination of the planning permission application. The removal of the residential caravans and prohibition from living on the site will bear heavily on the Defendants and their family. As a matter of fact they have at present no alternative site to go to. Even when it occurs, they will continue to run their businesses on the site, visiting the site regularly for the purpose. Their scrap metal business has been run for many years, no doubt itself in breach of planning control, but no steps have been taken by the Council to stop it. I have little doubt that that activity, involving some noise and the movement of vehicles, has some impact on the rural locality, even though (on the evidence of the planning officer) not so great an impact as the presence of the residential caravans and the Defendants and family actually living on the site.

Accordingly I have decided that though the injunction should be granted, its operation will be suspended until the determination of the Defendants’ present application for planning permission, including the determination of any necessary appeal against refusal by the Council.