London Borough of Barnet v Adler & Ors

The claimant (“Barnet”) is the local planning authority for the area of the London Borough of Barnet. Within that area is a property owned by the first defendant (“Mr Adler”) known as 211 Golders Green Road, NW11 9BY (“No. 211”). The property is currently used – in an admitted breach of planning control – as a school. The school operates under the name “Beis Hamadrash Elyon School”, and this name has been used to describe the second defendant in this action.

For convenience I shall refer to the school as “BHES”. The third and fourth defendants are teachers at BHES. The fifth defendants are described as “persons unknown”.

Barnet asks the court to grant an injunction pursuant to s 187B of the Town and Country Planning Act 1990 to restrain the breach of planning control at No. 211. The application is opposed by the first to fourth defendants. For convenience I shall refer to them together as “the defendants”. The sole ground of defence is that the court ought not, as a matter of discretion, to grant an injunction. In this judgment I begin with an outline of BHES and its current use of No. 211. I then describe the history before turning to the arguments advanced on behalf of Barnet and the defendants respectively, my analysis and my conclusions.

BHES is associated with a synagogue at 213 Golders Green Road. At No. 211 is a house comprising one of a pair of two storey semi-detached properties (Nos. 209/211) set in long rectangular plots with gardens to front and rear. This house is used to provide the schoolrooms for BHES. The playground of BHES extends across the rears of 211, 213 and 215 Golders Green Road.

Boys are enrolled at BHES in Year 7, aged around 10 years old. They leave at the end of year 10 when they are entered for their GCSEs. There are approximately 45 boys enrolled at the school.

BHES uses No. 211 and the playground from Sunday through to the following Friday. Boys arrive for prayers from 7.30am. School hours on Sundays are from 9am to 4pm, and on Mondays to Thursdays from 9am to 6.30pm. On Fridays BHES operates from 7.30am to 1pm in winter and until 4pm in summer. On Saturdays a community group uses No. 211 between 8.30am and noon for prayers and assembly purposes.

Mr Adler established BHES at No. 211 in 2002. The lawful use of No. 211 was (and remains) residential. A change from use as residential property to use as a school constitutes development for the purposes of section 55 of the Town and Country Planning Act 1990. Planning permission was therefore required to change the use of No. 211 to a school – but no application for planning permission was made. The consequence is that BHES was established at No. 211 in breach of planning control.

Following complaints from residents at neighbouring properties, Barnet brought the breach of planning control to the attention of BHES.

Mr Adler submitted a retrospective planning application for the unauthorised school use on 8 October 2003. This retrospective application was refused by decision notice dated 11 October 2004 for the following reason:

The use of 211 Golders Green Road as a school has resulted in increased activity, noise and disturbance that causes significant harm to the amenities of the occupiers of neighbouring properties contrary to PoliciesT1.1 & E6.1 of the Barnet Unitary Development Plan (Adopted 1991)and Env 12 & CS4 of the Barnet Revised Deposit Draft Unitary Development Plan (Approved 2001).

The unauthorised use of No. 211 continued despite the failure to obtain planning permission. On 27 April 2005 Barnet issued an enforcement notice requiring the cessation of the unauthorised use. The notice was to take effect, unless an appeal were made beforehand, on 9 June 2005. It required that use of No. 211 as a school should permanently cease 11 months after that date.

Mr Adler appealed against the enforcement notice on the grounds that planning permission ought to be granted for the use and in the alternative that the time for compliance was too short. The appeal was heard by way of public inquiry on 21 March 2006 before an inspector appointed by the Secretary of State. A site visit was undertaken on 22 March 2006.

By a Decision Letter dated 3 May 2006 (“the Decision Letter”) the inspector noted that under planning legislation the appeal involved a deemed application for planning permission. However, he refused to grant such permission, rejecting Mr Adler’s contention that planning permission ought to be granted for the use by BHES. The inspector also rejected Mr Adler’s alternative contention that the time for compliance was too short. The consequence was that the enforcement notice was upheld and took effect with effect from 3 May 2006, allowing 11 months for compliance. Accordingly use of No. 211 as a school was required to cease on 2 April 2007.

The inspector described the background in this way:

5.

The appeal site comprises one of a pair of two-storey, semi-detached properties (Nos.209/211) set in rectangular plots with gardens to front and rear, situated on the south-western side of Golders Green Road, a busy main road (A502) leading north-west from the centre of Golders Green towards Hendon. Generally to the north-east and south-west of this main road lie extensive primarily residential areas, served by a network of side roads. But the appeal site lies in close proximity to a small shopping centre to the north-west and is part of a frontage to this part of Golders Green Road containing a mixed range of uses.

6.

On the south-western side of the main road, between Limes Avenue a little to the north-west of the appeal site and Woodstock Avenue some distance to the south-east, there are three synagogues, a hotel, a youth club and banqueting suite, three offices and a chiropodist and, with the exception of a tyre and exhaust centre situated to the rear of a disused petrol filling station, most are contained in closely-spaced, semi-detached properties. On the north-eastern side opposite, where there is a wider range of original types of properties, stand a doctors’ surgery, a dental surgery, a guest house, a photographer’s studio and a children’s nursery.

7.

Nevertheless, particularly on the south-western side of the road, there is a significant proportion of residential accommodation. Indeed, save for the chiropodist in part of No. 203, the properties at 189-209 are residential. Some are flats, others are houses in multiple occupation (‘HMOs’) and a few remain as single family dwellinghouses. Opposite are a residential nursing home and a hostel.

8.

More particularly, No. 209 adjacent comprises two flats albeit that planning permission was granted in March 2006 in respect of the ground floor flat for its use of the provision of tutorials and private study. However, No. 213 is a synagogue with two flats on the first floor, No. 215 is an office, No. 217 is a residential and No. 219 at the junction of Limes Avenue is an office. The rear garden areas of the appeal site and those of No.s 213 and 215 have been amalgamated into a single entity to provide outdoor space for the use of the school. To the rear are the rear gardens of houses in Limes Avenue and The Grove.

9.

Although the mix of residential and non-residential uses fronting Golders Green Road, including the shopping centre nearby, has a significant influence on the nature of the immediate environs of the appeal site, the character of the wider locality is one that is predominantly residential.

On the contention that planning permission ought to be granted the Inspector identified three main issues: advantage to the neighbourhood, supply of housing, and effect on living conditions. In broad summary, the Inspector’s conclusion on advantage to the neighbourhood was favourable to Mr Adler, but this was outweighed by adverse conclusions as to the extent of harm arising from the effect on housing supply and the effect on living conditions.

As to advantage to the neighbourhood, the Decision Letter included the following:

11.

By UDP Policy H7.1, within predominantly residential areas, planning permission will not normally be given for changes of use from residential to other uses unless, among other matters, it is for some form of use providing specific community advantage to a particular neighbourhood. By RUDP Policy CS1, community and religious facilities and by RUDP Policy CS4, education facilities, will be permitted providing all of certain criteria are met.

12.

The school adopts the national curriculum together with what has been described as a strict Orthodox Jewish religious education. It is the appellant’s case that the school provides specialist teaching of an intellectual quality from which boys would go on colleges for Jewish studies; there is no comparable school in the area that places such emphasis on such academic study.

13.

The school anticipates an expansion from 50 boys to 72. Most at present live within walking or cycling distance, but four travel by car from Edgware, driven by one of the parents and ten arrive by cars from Stamford Hill, driven by teachers at the school. Both those who appeared at the inquiry and those who have written in support of the appellant testify to the important role that the school has provided since it was established, initially from 2001 using part of the synagogue at No.213 and latterly, from 2002, at the appeal site.

14.

It might be the case that other schools in the area could provide a similar form of specialist teaching albeit within a less intensive educational environment. Moreover, there is no certainty that, in the future, the number of boys who attend would do so from within walking or cycling distance. Nevertheless, the nature of the use and the area that it would serve are indicators that the school in question would provide particular benefits to those who reside in this part of North London and, in the terms of UDP Policy H7.1, would provide a specific community advantage to a particular neighbourhood.

As to housing supply, the Inspector found that the use of No. 211 as a school resulted in the loss of housing accommodation in Barnet’s area to the detriment of the supply of housing in that area contrary to the policies of the London Plan and the Unitary Development Plan for Barnet. The Decision Letter included the following:

18.

London Plan Policy 3A.12 indicates that UDP Policies should prevent the loss of housing, without planned replacement at existing or higher densities. Paragraph 3.57 explains that, given the level of need, existing housing must be retained where possible and appropriate, except where there are acceptable plans for its replacement.

19.

By RUDP Policy H3, permission will not be granted for changes of use from residential to other uses unless, among other matters, the proposed use is for a community facility; and the location is no longer environmentally suitable for residential use and cannot be improved; and the demand for the proposed use cannot adequately be met elsewhere; and the housing unit is not of a type in particularly short supply.

20.

The current version of RUDP Policy H3 was approved by Council after the enforcement notice was issued and it is that version which would now need to be taken into account. Unlike UDP Policy H7.1, the exceptions to the Policy H3 are not alternatives; all would need to be met.

21.

There is no dispute that the appeal site has previously been used for residential purposes. It might also be the case, on the evidence of the appellant’s expert planning witness, that properties fronting this busy main road are no longer attractive as single family dwellinghouses. Nevertheless, despite the presence of non-residential uses hereabouts, the amount of residential use, in the form of flats and other types of residential accommodation, remains substantial. There would be nothing inherently unsuitable about the nature of the property or its location that would significantly detract from its capabilities of continuing in residential use.

22.

Paragraph 8.3.10 of the RUDP explains that given the high demand for housing in the Borough and the need to meet strategic housing requirements, the loss from current dwelling stock of residential units of a type which are in short supply or serving a special housing need, including HMOs or other low cost or affordable housing, will normally be resisted.

23.

The appellant argues that large dwellings such as that of the appeal site are not in particularly short supply. But the Council maintains that all forms of housing are in short supply and there would be no reason to object to the conversion of the property to two flats; indeed, in refusing planning permission in 2004 for the conversion of Nos.209/211 to a school and two flats, the only objections related to the use as a school.

24.

From the evidence given to the inquiry, the type of housing that is in short supply in the Borough is not entirely clear; whilst being inclusive of HMOs low costs and affordable housing, other types would not necessarily be excluded. Moreover, the type and size of such acknowledged housing could change over the lifetime of the Plan which would be identified in a housing needs assessment. The high demand for housing generally is not disputed and the appellant refers to the large families typical of the local Orthodox Jewish community. As the appeal site would thus be capable of providing a range of types of accommodation subject to planning permission, it would remain as a valuable asset, contributing to the supply of housing available to meet the high demand in the Borough.

25.

It is the appellant’s evidence that, for several years, there have been a number of Orthodox Jewish schools competing for the accommodation to meet the demand of a growing community. Existing schools are over-subscribed. Discussions with the Council, in respect of the acquisition of suitable premises elsewhere for another school, have not been successful to date.

26.

Paragraph 9.3.7 of the RUDP indicates the Council will encourage the proposals which will help meet identified education needs and it is axiomatic that a school such as this would need to be located, within the community it is designed to serve, not just for the convenience of those who live there, but to reduce the need to travel long distances and the expense incurred in so doing. The investment made in the appeal site by the appellant adds strength to the appellant’s argument that this demand cannot be met elsewhere other than in this locality.

27.

It is, however, surprising that the evidence of the search for premises is not of a more robust form other than that of generalised statements. Whilst I have no reason to doubt the veracity of those statements made at the enquiry, some documentary evidence from land agents might have been anticipated and I have little evidence of the vigour with which enquiries have been pursued to fulfil the requirements of this particular school, rather than that of others, whose precise requirements might be different. The weight that might otherwise be attached to the difficulties of the appellant in seeking to acquire appropriate premises would be correspondingly reduced.

28.

In support of RUDP Policy H3, paragraph 8.2.11 explains that losses of housing may be acceptable to meet another community need. It may be necessary in residential areas to provide important local or community facilities and examples are given of doctors’ and dentists’ surgeries, children’s nurseries, affordable housing estate offices and places of worship; such proposals will be considered on their merits.

29.

However, there is no reference to such community needs embracing education facilities, whether with or without the religious ethos that underpins the appellant’s use. As I have found, RUDP Policies CS4 and CS1 make a distinction between educational uses and uses for community and religious facilities respectively. Moreover, neither RUDP Policy CS4, nor the relevant explanatory text, identifies education provision as a form of community facility to which RUDP Policy H3 refers.

30.

Hence, there is a shift in emphasis from the approach of the adoted UDP to that of the emergent RUDP; the latter distinguishes the provision of education uses from those of community and religious facilities. The scheme would accord with UDP Policy H7.1 in as much as it would provide a specific community advantage to a particular neighbourhood, but the Policy itself is now out-of-date and greater weight is attributable to the more recent policies of the London Plan that seek to prevent the loss of housing unless replaced.

31.

Even if it were to be the case that appeal site is of a type of housing that is not in short supply in the Borough and even if there is merit in the appellant’s claim that the demand cannot be met elsewhere other than at the appeal site, these considerations would be outweighed by the fact that the scheme would result in the loss of housing accommodation to the detriment of the supply of housing in the Borough, contrary to policies of the development plan contained in the London Plan and would fail to accord with RUDP Policy H3 as the use would not be for that as a community facility.

As to the effect on living conditions, the inspector found that the use of No. 211 as a school would give rise to unacceptable levels of noise and disturbance to the detriment of the living and working conditions of nearby occupiers. The Decision Letter included the following:

32.

General policies of the UDP pertaining throughout the Borough seek to maintain and improve the character and quality of the environment (Policy G1) and to give full consideration to all relevant aspects of environmental impact (Policy G2). By UDP Policy T1.1 all development proposals must be compatible with the established character of existing and adjoining properties and the general locality in terms of, among other matters, the intensity of use. More particularly, by UDP Policy E6.1, development which could clearly lead to unacceptable levels of noise nuisance to nearby existing or future occupiers will not be permitted.

33.

By RUDP Policy env12, proposals locate development that is likely to generate unacceptable noise levels close to noise sensitive developments will not normally be permitted. Education facilities will be permitted by RUDP Policy CS4 where they would not have a demonstrably harmful impact on the character of the surrounding area and amenities of nearby residential properties and other users.

34.

The appeal site is used as a school on Mondays-to-Thursdays between 0900 hours and 1830 hours although boys arrive for prayers from 0730 hours; on Sundays, the school operates from 0900 hours to 1600 hours; and on Fridays, it operates from 0730 until 1300 hours in winter and 1600 hours in summer. On Saturdays, a community group uses the premises between 0830 hours and 1200 hours for prayers and other assembly purposes.

35.

It might be the case that the Council has not taken action under other legislation in respect of any noise generated as a consequent of the use. Nevertheless, national advice contained in Planning Policy Guidance (‘PPG’) 24 (1994), points out at paragraph 2 that the impact of noise can be a material consideration in the determination of planning applications. The use of the appeal site since 2001, firstly by a nursery group and since 2002, by the appellant, would have enabled the Council, residents and others to gauge the impact of the use on the surroundings, having regard to the requirements of adopted and emerging policies.

36.

It is not the Council’s case and there is little tangible evidence that would indicate that the comings-and-goings of the 50 boys and the three or four cars of the staff at the start and end of the school days would have given rise to a material increase in the level of noise and disturbance perceivable over that generated by the levels of traffic and activity on the busy Golders Green Road. Nor is it the case that the occupants of the flats in the other half of these semi-detached properties at No.209, or of the flats above the adjoining synagogue at No.213, have lodged objections to the inquiry about the appellant’s use, although there would be many reasons why occupants might not wish to complain publicly about the activities of their neighbours. However, the crux of the concerns expressed in this case centres on the use of the rear garden as a playground for the school.

37.

Reference has been made to mid-morning and mid-afternoon breaks of up to 15-to-20 minutes duration and longer lunchtime breaks. During those times, the use as a playground by the boys, accompanied by running, shouting, playing football and other pursuits would often generate a substantial level of noise

38.

It would be the case that these bursts of activities would be confined to a relatively short periods of each day; some persons might also derive pleasure from hearing the sounds of youth enjoying a fresh air break from their studies. Nevertheless, the quietude of these rear gardens of properties fronting Golders Green Road, Limes Avenue and The Grove is in marked contrast to the levels of noise and hustle on the Golders Green Road frontage. The comparative peacefulness of these rear garden areas would be severely interrupted by the regularity of the disturbance caused by the noise generated by these intensive periods of boisterousness which simply could not be controlled by conditions in any effective manner.

39.

In the present case, the use of a semi-detached property to accommodate over 50 persons, being so intensive of land use, would give rise to conditions that would cause unacceptable levels of noise and disturbance to nearby residents and other occupier, including those who work in nearby offices; the aim of the appellant to accommodate up to 72 boys would merely add to the intensity of use and give rise to a commensurate increase in the levels of activity and resultant disturbance. The appellant emphasises the academic nature of the school and the limitations that such pursuits imposes on the character of the use. But circumstances could change and there would be no certainty that an alternative occupier would pursue the same academic format with consequential material changes to the character of the use.

40.

Furthermore, the need to expand the use into the rear gardens of Nos. 213 and 215 and the erection of an inordinately high fence on the boundary with No. 209, most likely in an attempt to prevent balls flying into adjacent gardens, are symptomatic of the over-intensive use of the property and gives further emphasis to my concerns about the unsuitability of the appeal site for the use in question.

41.

The appellant points out that many schools are located in the residential areas which they serve and where permissions for expansion have been granted, but each case would need to be considered on its merits in the light of the Council’s policies. The synagogues in Golders Green Road at Nos. 169/171 and at No. 213, which I was privileged to view, would also be used intensively by accommodating substantial numbers of persons, but they would serve a different function that would be unlikely to generate the regularity and levels of noise and disturbance of the type and nature of that arising from the outdoor activities of a school in this tightly-knit, predominantly residential location.

42 The use as a school would give rise to unacceptable levels of noise and disturbance, to the detriment of the living and working conditions of nearby occupier, contrary to relevant policies of the development plan and emerging RUDP.

On Mr Adler’s alternative contention that the time for compliance was too short, the Inspector considered that the period of 11 months to comply with the requirements of the enforcement notice was reasonable and adequate. The Decision Letter included the following:

44.

Because of the difficulties of finding alternative accommodation, the appellant seeks a period of three years to comply with the requirements of the notice. The appellant maintains that if the school is forced to close without alternative facilities, then the boys would either be dispersed among other schools where the academic regime would be less intensive or that parents may choose to educate their sons at home. The Council vigorously opposes such a period, pointing to the continuing harm to the environment and to the loss of the unit from housing stock.

45.

The notice requires only the cessation of the use. That could be achieved within the compliance period of eleven months set out in the notice. However, it is necessary to take into account the impact of enforcement action on a use such as this which would have difficulties like those that would be encountered in similar circumstances by small businesses and self-employed persons to which PPG 18 (1991) refers.

46.

Although the site is within an extensive urban area, there may be difficulties in obtaining a suitable location for premises such as this. Nevertheless, as PPG18 points out at paragraphs 10 and 16, it is not the local planning authority’s responsibility to take the initiative in finding or providing a suitable alternative site.

47.

Whilst the appellant is aware of discussions with the Council over the requirements of another school that have, so far, been unsuccessful, I am not convinced that the period sought by the appellant would be necessary or justified to enable the appellant to find alternative accommodation for the school and to arrange an orderly transfer. Indeed, a period of this length as sought would reduce the urgency on the part of the appellant to find an alternative location and would undermine the credibility of taking enforcement action in the light of continuing harm to the environment and the reduction of the housing stock of the Borough.

48.

The Council has sought to tailor the compliance the period having regard to the academic year. However, the appropriateness of the period must be determined as that reasonably necessary from the date of the notice comes into effect. Nonetheless, the period of eleven months would be an appropriate period that would balance the needs of the appellant to make alternative arrangements whilst safeguarding the interests of those who live and work in the locality and the efficacy of the Council’s politics. The appeal on ground (g) will fail.

At the end of February 2007 Barnet wrote to BHES drawing attention to the impending expiry of the compliance period. Correspondence then took place between Barnet and Mr Alvin Ormonde whose firm, “Planning and Project Management Services,” acted as planning agent for BHES. The upshot was that Barnet allowed the expiry date to pass while BHES took forward various attempts to find an alternative site. As time went by it became a matter of concern to Barnet that by May 2008 use of No. 211 by BHES was continuing. A letter to Mr Adler dated 7 May 2008 from Miss Rajput, a solicitor in Barnet’s legal division, summarised what had happened up to that date. The relevant part of her letter, with paragraph numbers added for convenience, stated:

[2] As you are aware on 25 April 2005 the Council issued an Enforcement Notice in respect of the change of use of the above-named property from a single dwelling house to a school. The Enforcement Notice required that the use of the property as a school was to permanently cease within a period of 11 months. An appeal was heard before a Public Inquiry on 21 March 2006 which was dismissed on 3 May 2006 and the Inspector found that the community advantages of the school use were outweighed by the effect on the supply of housing and the living conditions of neighbouring residents. The deadline for compliance was then set as 3 April 2007.

[3] Our Planning Enforcement Officer, Mr Iain Sutherland-Thomas wrote to your agent on 28 February 2007, to remind you that the deadline for compliance was due to expire. In response he was informed that the school had identified alternative premises, had exchanged contracts and that he would be informed of the programme for vacating the property in due course. On 17 May 2007 he requested an update and was advised by your agent on 21 May 2007 that the premises had been acquired and that your agent was also awaiting a formal timetable for vacation.

[4] Having not heard back by 11 June 2007, Mr Sutherland-Thomas again requested an update. Again, he was advised that no timetable had agreed due to the level of work required to make the property ready for occupation. In any event, he was informed that the timetable would be prepared within 28 days.

[5] As no further response was received, a further letter dated 28 August 2007 was sent to the school requesting confirmation that 211 Golders Green Road would be vacated by the start of the new school year in September 2007. It is noted that there was a subsequent telephone conversation between Mr Sutherland-Thomas and your agent, during which your agent disclosed that the outstanding property deal had actually fallen through and that discussion had commenced regarding the temporary use of a council property in a regeneration area by an associated primary school. It was claimed that if negotiations were successful the idea of a ‘site sharing’ scheme between the Talmud Torah Tiferes Shlomo primary and this secondary school would be introduced. The telephone conversation concluded by our Mr Sutherland-Thomas agreeing that in the circumstances a short extension in the period for compliance would be in order, until the end of Yom Kippur on 22 September 2007.

[6] A planning application for the change of use of ‘Wendover Lodge’ was made on 19 October 2007 and subsequently approved, subject to conditions on 11 December 2007. However, it transpired that the council had in fact refused to grant a lease on the basis that the site was neither suitable nor secure to be used as a school.

[7] On 11 February 2008, Mr Sutherland-Thomas again requested that use of the property as a school cease before the beginning of the summer term, being 21 April 2008, unless an alternative date could be agreed upon before 21 February 2008. No alternative date was agreed by that date.

[8] Mr Sutherland –Thomas visited 211 Golders Green Road on 27 February 2008 and the school appeared to remain in operation.

[9] I now understand that on 7 April 2008, Mr Adler contacted our Mr Joe Henry, Planning Enforcement Manager and informed him that an alternative site had been located, namely 78 Brentmead Place, NW11, corner of Shirehall Park and North Circular. However, you also informed him that the Environment Agency would not allow development on the site. Your contact with Mr Joe Henry did not constitute a realistic alternative date to comply with the enforcement notice. To date no alternative dates have been received from you or your agent to comply with the Enforcement Notice.

Miss Rajput’s letter of 8 May 2008 then addressed the position in the light of what had happened. The relevant part of her letter, again with paragraph numbers added for convenience, stated:

[10] The Council have provided you with more than 3 years to vacate the premises and stop the unauthorised use as a school. You have still failed to comply with the terms of the notice.

[11] I also take this opportunity to remind you that the Council is under no obligation to find or provide an alternative site a point echoed by the Planning Inspector in his decision dated 3 May 2006. You have been aware of the Enforcement Notice as early as April 2005; and you have had more than ample time to comply with it.

[12] The Planning Enforcement Team have consistently sought assurances that the use of this property as a school will cease. In Mr Sutherland-Thomas’ last letter dated 11 February 2008, he stated that unless a suitable alternative date could be agreed a deadline for compliance of 21 April would be imposed. He also advised that failure to comply could result in a criminal prosecutions and/or and Injunction Order.

[13] It is of note that the Planning Inspector in his decision dated 3 May 2006, highlighted the issues pertinent to the planning issues relevant to this case, in particular being:

1)

Supply of Housing

2)

Effect on living and working conditions of nearby occupants, with particular reference to noise and disturbance.

[14] It is maintained that the unauthorised use of the premises as a school is still causing a detriment to the supply of housing in the Borough. It is further maintained that the observations noted by the Planning Inspector in respect of the over intensification of use of the premises to accommodate over 50 persons is still unacceptable. The planning harm is still continuing in respect of the noise and disturbance caused to the nearby residents and other occupiers, including those who work in nearby offices.

[15] The Council decision to commence enforcement action was clearly upheld by the Planning Inspector. I am now of the opinion that you have been provided with a more than generous period to comply with the enforcement notice and immediate steps must be taken by you to comply with this Notice

[16] In order to minimise disruption I am instructed to consider approaching the Court to obtain an injunction to stop the use of the premises as a school as per the terms of the Enforcement Notice. Such action will ensure that the use of the premises as a school will cease at the earliest possible opportunity. It will also cause the least necessary disruption to the children’s schooling to occur at the most optimum time, being the end of the school year; allowing parents/guardians (and if necessary the Local Education Authority) to plan for the children’s future.

[17] This assessment is based on the understanding that the school is for the education of 40-50 boys of the Orthodox Jewish faith aged between 10 and 16. The education to be followed is the national curriculum and to broadly follow ‘national’ term dates except where other circumstances deem this inappropriate. The hours of education are broadly those followed in the majority of school, albeit with ‘after hours provision’ available. Each class has no more than 14 boys. There are currently no boys with a statement of special educational needs.

[18] If I have erred in my understanding please do not hesitate to correct me or Mr Sutherland-Thomas on 020 8359 4626.

[19] We do not know how aware those with children at the school or their parents are of the situation. If you do not wish to approach them directly please feel free to forward contact details to me or Mr Sutherland-Thomas so that the Council may inform them. If you wish us to write to them to explain the Council’s position, please provide contact addresses so that we can write to them with 10 days of receipt of you providing these details. The Council’s prime concerns are that the breach of control is resolved in such a way as minimises disruption to the education of any of the pupils.

[20] You have 10 working days, from the date of this letter to respond to me or Mr Sutherland-Thomas.

Mr Ormonde emailed Miss Rajput on 9 May 2008 asserting his belief that the two considerations identified by the Inspector [i.e. the effect on housing supply and the effect on living conditions] had been addressed. In relation to the latter he attached a Report dated 8 May 2008 (“the Hines Report”) by Mr Hines of WA Hines & Partners, Acoustic and Noise Control Consultants and Designers.

The Hines Report included the following:

1.03

To assess the prevailing conditions a visit to the School was made and typical background noise levels were measured in the activity area at the rear. Due to the considerable variation in noise levels that exist in such areas at any one time during break times (weather/number of students etc.) typical activity noise levels have been used for the assessment. These noise levels have been measured previously and can be taken as being representative of a “worst case” condition.

…

3.01

As the noise produced by the students in the activity area can vary from day to day previously measured noise levels have been used. The prevailing background noise levels in the rear activity area, when the area was not in use however, were measured during a survey of the School on Friday 4 April 2008. A Rion NA27 integrating sound level meter was used for the measurements. The microphone height was approximately 1.5M and the meter was calibrated before and after to ensure no drift in accuracy. The weather was dry and there was little wind.

…

5.01

In order to assess the impact of the noise produced in the activity area on the adjoining residential properties the noise levels at these properties requires to be known. Calculations have been made therefore to determine the noise levels outside the rear of these properties using the data set out in the tables taking into account the reduction in noise from the activity area to the nearest property due to distance and any screening that would be provided by intervening fences. The calculations are shown in APPENDIX A.

5.02

By considering the calculated noise levels against the measured background levels as shown in TABLE 1, it is possible by reference to the stated Standards, to determine whether or not noise in the activity area would be a cause of annoyance and disturbance to the adjoining residents.

5.03

From the calculations in APPENDIX A it will be seen that typically, from the “worst case” activity noise level (73 dB LAeq – 80 dB LwA), the resulting condition, as predicted over the distance to the nearest house, would increase the prevailing LA90 background conditions as measured by 11 dB. That is with an acoustic correction of +5 dB. Under a BS4142 assessment therefore, giving a + 11 dB rating, it is likely that some disturbance would be caused and complaints attracted.

5.04

As noise in the activity area will exist for defined short period of time during the day, it is considered that a further assessment should be made by comparing the resulting noise level, as heard within the adjoining properties themselves, against the recommended range of criteria stated in BS8233.

5.05

In this regard, taking the windows in the adjoining residential properties to be open, providing a reduction of around 13 dB LpA, activity noise at 51 dB LAeq would reduce to a level of 38 dB LAeq inside. This level of noise is just within the acceptable range for reasonable working/resting/sleeping during the daytime as stated in TABLE 5 of BS8233:1999. Should windows be closed, noise levels would be further reduced whereby it would be unlikely for the activity noise to be heard.

5.06

However, with a BS4142 assessment showing that disturbance could be caused to the nearest residential properties, even though with windows closed conditions could be said to be generally acceptable, it is recommended that specific noise mitigation measures are carried out.

5.07

Further calculations as shown in APPENDIX A, indicate that with a 3M high close boarded timber fence erected in place of the existing open wire fence, the noise level at the nearest house would reduce by 12dB (1^st floor windows). This would result in a -1 dB rating to BS4142, which would give a condition of no complaint.

The conclusion of the Hines Report was in section 6:

6.01

From the measurements and calculations made, it can be said the noise from the School’s activity area, although shown to increase the prevailing background conditions outside the adjoining residential properties, would not cause unacceptable conditions within these properties when windows are closed.

6.02

However, in view of the complaints that have been received and an assessment by BS4142, the following noise mitigation measures are recommended.

•

The existing open wire fence is removed and replaced with a substantial close boarded fence to provide screening to the activity area. The overall height of the fence should be approximately 3M to the top of the rear extension extended from the extension to the returning fence along the rear boundary. Such a fence would visually screen the activity area from the rear gardens and houses and would reduce activity noise by approximately 12 dB LpA at the 1^st floor windows of the nearest houses.

6.03

It is inevitable that some noise from the use of the activity area will effect the adjoining areas, as to some extent does noise from the traffic on the adjoining roads. However, it is considered that the nature of the use combined with the noise mitigation measures set out, will not result in any significant effect on the amenity of the residents, taking account of the relatively short periods of time that the noise increases occur.

On 12 May 2008 Mr Ormonde supplied to Barnet an annotated version of Miss Rajput’s letter of 8 May 2008 setting out a series of numbered comments on that letter.

On 30 June 2008 Ms Anna Cane, an officer of Barnet experienced in noise related work, visited 207 Golders Green Road to assess the noise from the boys playing in the rear activity area at No. 211. She produced a document entitled “Noise Assessment of Boys Senior School at 211 Golders Green Road”. I shall refer to this as “the Cane Report.”

The Cane report included precise measurements taken by Ms Cane on 30 June while the boys were playing in the activity yard. Its summary and conclusion included the following:

Noise readings were taken in accordance with BS:4142 (1997): Method for rating industrial noise affecting mixed residential and industrial areas. The only constraint was the time limit for readings; I was unable to take measurements over a full hour for the background, residual and specific noise levels. I took 26 minutes for the specific noise; I was limited to the length of the boys play time which was only 30 minutes long. I was able to take 15 minutes for residual and background sound levels, because around 13.45 the noise from a building site on Limes Avenue nearby, increased significantly; they started using noisy machinery.

The conclusion from my assessment is that the noise level from the boys playing in the activity yard is significantly above the background level at one metre from the back façade of the premises at 207 Golders Green Road. The BS4142 guidance suggests that “complaints are likely” for the noise levels I obtained. Given that “complaints are likely” during the week day when background levels are higher, then on a Sunday it is very likely that there would be a problem too.

The noise from the boys playing is detrimental to amenity; The noise is also likely to constitute a statutory nuisance if dealt with under the Environmental Protection Act 1990.

…

The assessment of the sound levels show that the noise of the boys playing in the rear activity area is significantly above background and efforts should be made to decrease the noise by at least 13 dB. It may also seem reasonable to suggest that this may not be the most appropriate setting for a school for a number of older boys who should have access to an outside activity area, because it is so close to the neighbouring premises.

No readings were taken at the weekend when the noise levels are the same but the background noise level is likely to be less, thus resulting in a larger excess.

The noise from the plant may constitute a statutory nuisance if dealt with under the Environmental Protection Act 1990. This would require further investigation if the Council were to pursue the statutory nuisance path.

I agree to some extent with Peter Hines findings from his report. I acknowledge that our findings are very similar, although Peter did not use actual measurements of the children; he used a worst case scenario set of values from previous work.

Where I disagree with Peter is his suggestion that the noise issue would be resolved by the inclusion of a 3m high fence around the play area. This may have some effect, but as there is an existing close boarded fence separating the complainants garden from the building next door to the school, some of the sound is already being diminished this way. Although such a fence would be more effective as it is close to source, I am not sure that it would provide enough reduction in sound level. Also, a close boarded fence would not provide much protection from the noise from the classroom with the open window on the first floor.

In July 2008 Barnet’s Children’s Service prepared a briefing note (“the Children’s Service Briefing Note”). It was prepared in order to assess the effect on the boys at BHES in the event that an injunction was granted and any steps that Barnet would need to consider in respect of consequences of such an injunction. The Children’s Service Briefing Note referred to a lack of “quality information” about the wishes of parents of boys at BHES for their sons to be educated following a particular Jewish orthodoxy. There was a number of independent schools in the Barnet area which served the Jewish community. It was not clear whether they would meet the needs of boys currently attending BHES. There were other schools servicing the Jewish Community in other local authorities, for example Jewish Free School (“JFS”) in the London Borough of Brent. It was not known how many boys currently at BHES were Barnet residents. The author of the report noted that a consideration of the issue of hardship could only be the subject of a limited response, in the absence of knowledge about the circumstances of the families. The author observed that there is free transport available to children in London, that some of the current students travel from Stamford Hill, and that it appeared that parents of boys at BHES already made a financial contribution to the costs of their sons’ education. The author was “not sure what further hardship may result.”

The Children’s Service Briefing Note concluded by identifying issues relevant to proportionality. On the one hand there was a query about the quality of education provided at the school. On the other hand the author said that this must be balanced against a number of other issues. Those issues can conveniently be described as issues concerning what would happen to boys at the school. The essence of those concerns is set out in the final two bullet points of the Children’s Service Briefing Note as follows:

- The term dates of Beis Hamerdash Elyon are not known and it will not be possible to provide suitable places for their students by the end of the academic year for community schools in Barnet (23 July).

- The Children’s Service is not in a position to comment on whether similar quality of Jewish educations in other schools or establishments is available.

It was not until 13 August 2008 that Miss Rajput responded to the material supplied by Mr Ormonde in May that year. Miss Rajput’s letter of 13 August 2008 to Mr Ormonde included the following:

We now attach for your attention our Noise Assessment Report dated 1 July 2008. You will note that our expert concludes that their measurement of the noise emitted from the school does not differ significantly from the finding submitted by W A Hines and Partners. It is also of note that in any event, both findings from our respective experts confirm that the level of noise being emitted is unacceptable and likely to result in complaints. This in the opinion of our expert could lead to a statutory nuisance claim.

Our expert does not accept the suggestion of a 3m fence to effectively reduce the noise at this site. To erect such a fence would require planning permission in the first instance. Could you confirm whether you have lodged such an application or when you are likely to submit the same to be considered by our Planning Department?

We are therefore not convinced of your current proposal to deal with the noise disruptions caused by the school. We will be continuing to monitor the noise and the complaints from the school, and will be seeking to proceed with an application for an Injunction towards the end of the school term in December 2008 with closure in January 2009.

In view of this we advise that the parents of the children that attend the school are informed of our intention to take injunction proceedings. It is in their best interests to start seeking alternative schools for their children to attend at the beginning of January 2009. We enclose a list of State Schools that may be considered by them. They may wish to contact the Council at the Children’s Services who may be able to advise in finding an alternative school. It may assist the Council to be informed of the number and ages of the pupils that live in the borough, so that necessary arrangements can take find alternative schools. Your clients can of course start considering premises that are suitable for the running of the school, an action that they have been advised to take since October 2004.

We invite your comments in respect of the conclusion of our noise expert and any alternative methods that you propose to deal with the problems of the noise being caused by the school. We will be sending a copy of this letter to your clients so that they can advise the parents of the children at the school of our proposed arrangements as soon as possible.

In the meantime, the need for housing remains high in Barnet. It is of note that the London Plan required that 17780 new homes be provided between 1997 and 2016. These figures were those adopted in the UDP and hence considered at the appeal in this matter. However, in December 2006 the figure was superseded by a target of 19600 homes between 2007/2008 and 2016/2017. The current annual target of 1886 new dwellings per year over the lifetime of the plan (the balance being vacant homes being brought into reuse or atypical housing) has increased significantly compare to a figure of 889 in the UDP. It is therefore apparent that since the appeal, Barnet’s expected contribution to London Housing supply has increased drastically. It is therefore the Council’s opinion that the current circumstances have added weight to the Planning Inspector’s reasoning in his decision dated May 2006.

There was no response on behalf of any of the defendants until December 2008. In the interim, however, it is convenient to note here that during 2008 BHES continued to seek alternative locations. Among these were Park House in London N2, and a former Carmelite Monastery in London NW11, both of which appear to have ultimately been sold for residential development. Also in the interim a further planning application was considered in respect of 209 Golders Green Road. Paragraph 8 of the Decision Letter (see paragraph 13 above) noted that planning permission was granted in March 2006 in respect of the ground floor flat at No. 209 for use for the provision of tutorials and private study. By a decision dated 22 September 2008 Barnet granted permission to change the use of the ground floor from religious tutorial rooms to a synagogue. This was subject to conditions, including a prohibition on more than 35 persons being present on site at any time, a prohibition on amplified music being played on the premises, and a prohibition on weddings, parties or social gatherings taking place at the premises.

In the absence of a response to her letter of 13 August Miss Rajput wrote to Mr Ormonde on 16 December 2008 seeking information relating to the school’s timetable and curriculum. By letter dated 30 December 2008 Mr Ormonde said he had sought a meeting with Mr Adler, but unfortunately Mr Adler had been rushed to hospital. Mr Ormonde added that he had that day submitted an application. This was a reference to a planning application dated 29 December 2008 in the name of Mr Adler which again sought permission to use No. 211 as a school. The application noted that the Decision Letter had identified issues as to the effect on living conditions, but commented that the inspector had not had the Hines Report. As to the Decision Letter having identified supply of housing as an issue, the application said that the inspector “omitted to give much weight, or any” to the planning consent granted for the use of the ground floor at 209 Golders Green Road in 2006 and added that the consent had been varied to permit a maximum of 35 persons.

In February 2009, after a reminder that the details sought on 16 December 2008 remained outstanding, Barnet was sent copies of the school prospectus and of letters of support. Meanwhile the search for an alternative location continued, and on 5 March 2009 a company associated with Mr Adler put forward a tender for a site at Montagu Road, London NW4. This in the event was unsuccessful.

The further planning application dated 29 December 2008 came before Barnet’s planning committee on 1 April 2009. The application was refused. Barnet’s formal notice recorded the reasons as follows:

1.The use of the site as a school results in the loss of housing accommodation to the detriment of the supply of housing in the Borough, contrary to policy H3 of the Adopted Barnet Unitary Development Plan (2006).

2.

The use of the site as a school, by reason of its nature, results in increased activity, noise and disturbance (especially from the rear garden which is used as a playground) which causes significant harm to the amenity of neighbouring occupiers contrary to policies ENV12 and CS4 of the Adopted Barnet Unitary Development Plan (2006).

These formal reasons reflected the recommendation made to the committee by Barnet’s officers. Mr Ormonde observes, and it is not contested, that the application was refused by a margin of 1 vote only, the local Ward Councillor and two others favouring continued use as a school, while the majority of 4 opposing such use said that they had sympathy with the school but decided that consent should be refused because of the enforcement history.

The present proceedings were issued on 8 June 2009. They were served on the defendants shortly afterwards. However there was no response from the defendants until a directions hearing before His Honour Judge Seymour QC sitting as a judge of the High Court on 22 June 2009. On that date an acknowledgement of service was produced and Mr Alesbury, who appeared on behalf of the defendants, told the court that an appeal had been or was about to be made from the council’s refusal of planning permission on 1 April 2009.

The promised appeal was indeed lodged on 22 June 2009, along with a request for a public inquiry. The form, which was lodged by Mr Ormonde on behalf of Mr Adler, provided a brief outline of the grounds of appeal as follows:

(1)

The appellant will submit that with reference to the Noise reports that there is little difference whether or not the school is in operation.

(2)

The appellant will further submit that having regard to the planning consent F/02013/08 granted at 209 Golders Green Road and to the refusal W14324A/06 3 January 2007 at 207 Hale Lane HA8 9QH the re-instatement of residential use at 211 Golders Green Road is inappropriate.

(3)

The appellant will also submit that the noise level at the appeal site is NEC Category C and the re-instatement of residential use is contrary to Policy env13 and PPG 24.

A defence lodged on 6 July 2009 said simply that the injunctions sought by Barnet should not be granted for reasons “set out fully in the witness statement of Mr Alvin Ormonde…”. This was a reference to a statement of Mr Ormonde made on 6 July 2009 (“Ormonde 1”). Among other things, this described steps that had been taken by the defendants in relation to noise since the refusal of the further application for planning permission on 1 April 2009. Mr Terence A Rook of Stinton Jones Consulting Engineers LLP had been instructed. He had visited No. 211 on Tuesday 5 May and Wednesday 13 May 2009 and had taken readings from 3 locations, including readings during break activities. He prepared a report which appears to have been dated 15 June 2009 and which I shall refer to as “the Rook Report”. Section 9 of that report set out Mr Rook’s conclusions as follows:

This building is in a location that should, according to the Barnet Unitary Development Plan and the Government PPG 24, not be used for residential purposes.

There are no viable guidelines for noise from schools and a restriction on that ground would be contrary to developments of schools all over the country.

In the case of this school noise measured during our surveys was far below that expected for large primary schools.

The measured and recorded noise levels are not such that could give rise to reasonable complaint.

At the outset of the Rook Report section 2 provided a summary which included the following:

2.2

Measurements of noise levels adjacent to neighbouring properties were taken both during and before and after break time on two separate days.

The readings show that the average noise increase is only 4dB

This is far less than the values assumed in earlier discussions and correspondence between London Borough of Barnet and representatives of the School.

2.3

There is no definitive guidance in the Barnet Unitary Development Plan for noise from schools, presumably because any such definitive guide would prevent further development of schools in the borough.

2.4

This school is not a large primary school where children are given to making excessive noise; it is a small school with small class sizes and with older pupils who do not make excessive noise.

2.5

The School is on the main Golders Green Road that has an equivalent noise level of 68.6 dbA which is classified as NEC C in the Government Guidance for Construction, DCLG PPG24. In this category planning consent for new dwellings should normally be refused. Ordinary dwellings in this Road will have difficulty complying with the requirements of Barnet on this matter.

Noise effect on adjacent properties was dealt with in section 8.1 of the Rook report as follows:

The activities of boys at break in this school as in most others is restricted to short limited periods so that the average noise increase over the whole day would be less than indicated in the table above.

The noise from the school is so low that it will not cause be detrimental to anyone inside their houses; it is only the noise in gardens of adjacent properties that has been discussed in the planning documents that have been exchanged.

The school is on holiday during most summer months and this is the time when people may expect to be in their gardens most often.

The school does not have activities in the evening or on Fridays or Saturdays. The school does have one short break on a Sunday morning but the neighbours in this area mostly regard Friday and Saturday as the weekend.

The boys at this school are in the age range 9 to 16 and are generally well behaved. There are only 45 pupils and only a minority engage in football or similar games.

During our visits it was clear that this is not a large school with very young children prone to loud screaming. The school is very small so that the boys well supervised.

We understand the class sizes are small and during our visits we could hear no noise whatsoever emanating from the class rooms during lesson time or during break time.

The readings we have taken show an average noise increase of only 4dB. This is an almost imperceptible level approaching the usually accepted criterion that any noise increase of less than 3dB will not be noticed.

The Barnet Unitary Development Plan is a carefully drafted document giving great detail on many aspects of noise control. It does not however give any direct guidance on the Boroughs requirements for noise from schools. This is probably because it would prove impossible to build a school at any new location within the Borough if such a Criterion was included.

It is known that some people will object to the noise of a large primary school but we can find no reference to planning refusal of a school on grounds of noise. In the case of a large primary school noise levels might be expected to be in the order of 70 dB, that is 20dB higher than this school.

Our initial noise survey on 5 May was made using the automatic integration of noise over the duration of the recording. This yielded such insignificant difference between break and no break that we repeated the tests using one second integration. These results are given in charts in Appendix 2.

These charts are useful in that they show the comparison between background noise and activity noise more clearly.

It can be seen that the background noise in these gardens is not constant; it has peaks and troughs caused by a number of different noise sources such as planes over flying large trucks and buses passing in Golders Green Road, dogs barking and so on.

Possible amelioration of noise to adjacent properties was dealt with in the Rook Report in section 8.2:

The Barnet Supplementary Planning Documents 4.16 sub paragraph 5 quoted in section 4.1 above gives guidance for noise for machinery. This recommends that noise from machinery should be 10 dB lower than background. (LA90). Where LA 90 is the noise exceeded for 90% of the time, a very low noise level.

This criterion is not applicable to noise from a school because the school noise is not continuous: if it were to apply then no school could ever be built.

But if the Court does consider that such a criterion should apply amelioration would be possible.

As stated in the report by W A Hine a fence approximately 3 metres high would attenuate the noise to a listener in the garden of 207 by 12 dB. The net level of noise from the school would then be approximately 8 dB below ambient. The planning refusal refers to impact noise from footballs being kicked against the fence. If this is considered a realistic nuisance the fence should be of solid brick to a height of 2 metres with a timber or glass extension raked back towards the playground to give an equivalent acoustic height of 3 metres.

Ambient noise from Golders Green was dealt with in section 8.3 of the Rook Report. Here Mr Rook described his own recorded value of the relevant reading as 68.6 dB, and observed that under PPG 24 this fell towards the upper end of Noise Exposure Category C, the relevant range being 63-72 dB. Section 8.3 of the Rook Report continued:

The Barnet Unitary Development Plan ENV 13 recommends compliance with PPG 24 that says of sites in Category C:

Planning permission should not normally be granted. Where it is considered that permission should be given, for example because there are no alternative quieter sites available, conditions should be imposed to ensure a commensurate level of protection against noise.

This does accord with the developments along this part of Golders Green Road that are mostly being converted to commercial use. Commercial buildings such as hotels nursing homes or hostels can more readily accommodate the required protection against noise from the street.

Returning to Ormonde 1, paragraph 8 noted that Barnet sought to portray BHES as simply carrying on operating in flagrant disregard of planning law. Mr Ormonde denied this, and explained that it was only because BHES found itself completely frustrated in its attempts to locate suitable alternative premises that it began to look again at the question whether the planning position at No. 211 might have “moved on” since the inspector considered it in May 2006. This had led to the further planning application, which far from being a hopeless quest had almost succeeded, being rejected only by a 4 to 3 majority vote. At paragraph 48 Mr Ormonde referred to evidence lodged by Barnet concerning schools in its area that would be suitable to take the students of BHES. This was a reference to paragraph 27 of the first witness statement of Mr Iain Sutherland-Thomas made on 5 June 2009 which identified 3 possible alternative schools. Mr Ormonde produced letters from each of these 3 schools. A letter dated 17 June 2009 from the Chairman of Governors of Pardes House Grammar School stated:

Thank you for your request regarding taking 40-50 boys in from Elyon. I regretfully have to inform you that we are full and thus do not have the space to accommodate such a large number of boys.

A letter dated 17 June 2009 from the Chairman of Governors of Menorah Grammar School stated as follows:

After careful consideration we have to conclude that if BME would be forced to close, Menorah Grammar School would not be a suitable option for their pupils.

We feel that our school cannot absorb their pupils as our curriculum is not compatible with their requirements.

A letter dated 16 June 2009 from the Chairman of the Admissions Committee of the Board of Governors of Hasmonean High School stated as follows:

You have inquired whether, in the event of Beis Hamedrash Elyon School closing down, it would be possible for your pupils to transfer to Hasmonean High School. I understand that your school has a pupil roll of some 50 boys (years 7-10).

I am writing to you to advise that it is most unlikely that Hasmonean High School would be able to accommodate any of the Boys from your School in the event of its closure. The reasons for this are as follows:-

1.

Hasmonean High School is an over-subscribed voluntary Aided State Secondary School following the National Curriculum. The years in question on our Boys Site are full and in some Years we have a waiting list. Further more, the size of our classrooms would not allow us physically to accommodate additional students in these years.

2.

Pupils in our School study to take most of the GCSE examinations at the end of year 11 and thereafter the School expects that most of our students will continue their studies in or Sixth Form (years 12&13).

3.

Although our over-riding admission Criteria state that admission will only be given to Halachically Jewish children who have a genuine desire for Orthodox Jewish schooling and are themselves orthodox, we cater for a much wider spectrum of the Orthodox Jewish community – both in religious observance and catchment area – rather than the small homogeneous group of boys that you educate. Furthermore, we expect our pupils to have controlled access to the internet to assist them in their studies which, I understand, is not the case in your School where internet access is not allowed. In these circumstances, I am very doubtful whether the parents of your pupils would consider Hasmonean High School as a suitable alternative for their sons.

A second statement of Mr Sutherland-Thomas dated 10 July 2009 (“Sutherland-Thomas 2”) explained that the Rook Report would be discussed in a separate statement by Ms Cane. He noted that there had been representations about noise to the inspector from neighbours at 2 properties, whereas by 1 April 2009 the number of properties housing objectors had increased to 8, coming from all 3 developed sides of No. 211 and extending as far as 205 Golders Green Road to the south and 219 to the north. The change of use of the study centre to a synagogue, with numerous conditions, at No. 209 had not changed the circumstances in any material manner. A suggestion that the loss of residential accommodation in Golders Green Road could be met by the provisions of dwellings in a further site faced difficulties in that the suggested further site lacked planning permission pending an appeal, would not overcome the loss of residential development at No. 211, and had not been shown to be linked to the existence of the school. Since the Decision Letter the emerging development plan referred to by the inspector had been adopted and represented a significant tightening of the approach to loss of residential uses. The statement criticised the efforts to relocate described by Mr Ormonde. As to availability of alternative school places, it referred to a public register known as “Edubase”, along with a chart describing pupil numbers, and stated capacities of local education authority schools, as at June 2009. This material was said to show that with the exception of pupils aged 13 all pupils at BHES could be relocated to Pardes House without any year group exceeding 65 pupils. With the exception of pupils aged 11 and 14 all BHES pupils could be accommodated at Menorah Grammar School without exceeding the size of the largest year current group. Information in relation to Hasmonean School suggested that in certain circumstances there was capacity for additional pupils. As to suggested incompatibilities of curriculum if boys were to go to Menorah Grammar School or Hasmonean School, the extent of such incompatibility was unclear.

On behalf of Barnet Ms Cane made a statement (“Cane 1”) on 13 July 2009. Ms Cane criticised subjective statements made by Mr Rook, adding that from her own visit she could state that in the garden of 207 Golders Green Road the noise of the boys shouting and kicking footballs was loud, and indeed even the sound that emanated from the first floor classroom with the windows open was significantly louder than the background noise level. As to Mr Rook’s conclusions that No. 211 fell within noise exposure category C, this missed the point that this was not a new residential development, and thus there was no question of it not being suitable in terms of PPG 24. In any event it was common for new residential developments in Barnet to fall under noise exposure category C. Existing guidance and Barnet’s internal standard required noise level to be at least 5dB(A) below background level at neighbouring premises. She asserted that in numerous detailed respects the methodology adopted by Mr Rook was flawed.

On 16 July 2009 Mr Ormonde made a second statement (“Ormonde 2”). He said it would be wrong to assume that the “complaints” referred to by Mr Sutherland-Thomas represented genuine local anxiety about BHES. That matter would be fully looked into by the planning appeal inspector. On the issue of noise Mr Ormonde produced a schedule setting out observations by Mr Rook in response to Cane 1. On availability of alternative school places, Mr Ormonde stressed that BHES provided a very particular type of orthodox Jewish education.

At the hearing before me on 22 July 2009 I was told of a further development. By letter dated 20 July 2009 the planning inspectorate advised that the appeal would take the form of a hearing (rather than a public enquiry) and would start on Tuesday 15 September 2009. The inspectorate would aim to issue the Decision Letter within 7 weeks of the closure of the hearing.

Section 187B of the Town and Country Planning Act 1990 provides that:

(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.

(3)

Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

Both sides agree that the court’s approach to s 187B is governed by the decision of the House of Lords in South Buckinghamshire District Council v Porter [2003] 2 AC 558 which approved observations in the speech of Simon Brown LJ in the Court of Appeal in that case. Those observations included the following:

38.

I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s.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 reached 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 s. 187B 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 posed 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 to 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.

41.

True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be “commensurate” — in today's language, proportionate. The Hambleton approach seems to me difficult to reconcile with that Circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998 , to my mind it cannot be thought consistent with the court's duty under s.6(1) to act compatibly with convention rights. 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.

42.

I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge.

Ms Sheikh advanced a proposition that in general injunctions which should otherwise be granted under section 187B should not be suspended by reference to the expected result or duration of the planning process. In order to examine this proposition I must refer to four cases.

In Waverley BC v Lee [2003] EWHC 941 (QB), an extempore decision of Stanley Burnton J on 6 March 2003, an injunction had been obtained under s 187B. Mr David Mackie QC, sitting as a High Court judge, had granted a relatively short suspension of the injunction and Lloyd J granted a short extension to that suspension. In his judgment Stanley Burnton J said this:

18.

Both Mr David Mackie QC and Lloyd J took the view that the court should not suspend an injunctive order of the present kind by reference to the expected result of or duration of the planning process. Their decisions are not simply of highly persuasive weight so far as I am concerned; they are of greater significance, having been made in the context of the present litigation itself. In my judgment, in the absence of very exceptional circumstances, and perhaps in no circumstances at all, may I treat this application as an opportunity to review and, if I think it appropriate, depart from the decisions made by Mr David Mackie QC and Lloyd J. As Mr Willers fairly accepted, I am not a Court of Appeal. I have no power to review those decisions. They are binding decisions, not having been the subject of appeal. In the normal course I could and should only vary Lloyd J's order if there has been a relevant change of circumstances or some other relevant event since the date of his order. It is accepted that the only relevant event is the application for planning permission. However, both those judges considered it inappropriate to suspend the order injuncting the defendants on the basis of the pendency of planning proceedings. Were I to do so now, I would, it seems to me, be going behind their orders and effectively departing from them. I do not think it appropriate for me to do so. Even if I were able to do so, in the circumstances of this case, having regard to the time when and circumstances of the defendants' entry on to the site and development of it, I should have come to a similar, if not identical, decision to those judges. It follows, therefore, that the making of the new planning application is not for the purposes of considering or reconsidering Lloyd J's judgment a relevant change in circumstances.

The decision of Lloyd J referred to by Stanley Burnton J was given on 14 January 2003 and has the Neutral Citation Number [2003] EWHC 29 (Ch). Lloyd J’s judgment was as follows:

1.

This is an application by the defendants in this claim for the further suspension of an order made by Patten J in effect on 16th September last year which, if not further suspended, must be complied with as regards its mandatory provisions by 4.30 pm today.

2.

The proceedings are brought by the claimant as local planning authority under section 187B of the Town and Country Planning Act 1990 for an injunction to have a breach of planning control restrained. The defendants consist of 34 individuals, and one defendant, the second, which may be an unincorporated association or may be just a trading name. Some or all of them own parts of the relevant land. The individuals are all travelling show people. They need land on which to station their vehicles and equipment over the winter outside the fair season where they also live during the winter in their caravans. It is plain from the evidence that it is getting extremely difficult to find available sites for use as winter quarters, particularly so as regards sites that both are suitable from a practical point of view and can lawfully be so used under the planning legislation.

3.

The defendants moved onto the relevant land early in September 2002. The second defendant had applied for planning permission on 6th April 2001 for permission to establish permanent quarters for show people on the land. The application was refused by the claimant; the refusal being notified by a letter dated 4th October 2001. The second defendant appealed against the decision and the appeal was to be heard on or from 1st October 2002. Without waiting for that hearing or its outcome, the second defendant moved onto the site on Friday, 6th September and did various works in breach of planning control, including constructing a hardcore road and other facilities, permitting the positioning of many vehicles on the site, and permitting the other defendants to reside on the site. The land comprises three fields off Horsham Road, Cranleigh, Surrey, amounting to some 12 hectares.

4.

The claimant protested immediately. It applied for an injunction without notice on 10th September which was granted on 11th September, although at that stage it was not immediately fully effective. It issued these proceedings on 12th September. On 16th September Patten J varied his earlier order to make it immediately effective. It requires the defendants in its mandatory part to remove from the site any mobile home, structure, lorry, JCB, showman's vehicle or motor vehicle whatsoever, and any posts, walls, gates or fences. It requires the defendants to cease the construction of any roads, hard surfaces or any buildings or structures whatsoever on the site. It prohibits them from stationing on the site any mobile home, structure, lorry, JCB, showman's vehicle or motor vehicle whatsoever, or from erecting any walls, posts, gates or fences or carrying out any work for the construction of roads, hard surfaces or buildings or structures whatsoever on the land.

5.

The defendants immediately applied for the discharge or suspension of the order pending the determination of the planning appeal. The planning enquiry was duly held early in October. The defendants' application for suspension came on before Mr David Mackie QC, sitting as a Deputy Judge of this Division, on 11th October and he gave judgment on Monday, 14th October. I have been shown and have read a transcript of his careful judgment. He suspended the mandatory provisions of the order for three months until 4.30 today on certain conditions, including conditions as to the maximum number of vehicles which were to be permitted to be on the site at any one time, the areas on which they could be placed, a restriction of the hours during which generators could be used, and conditions as to the manner of disposal of waste. It is not suggested that these conditions have been broken.

6.

The present position is that the defendants have been trying to find other places to go but have failed. They say that basically there is nowhere else to go. They also say that it is forecast that the result of the planning appeal will be known some time from mid-February. They now apply for a further suspension of the order, either until after the result of the appeal has been decided, or until after a substantive hearing of the defendants' defence under Article 8 of the European Convention on Human Rights , although rightly the latter has not featured in the argument before me.

7.

The application was issued on 7th January and is supported by a witness statement of Janet Montgomery, a planning consultant, and by witness statements from 16 factual witnesses from among the defendants, and I have also had placed before me and have read, seven further witness statements from other such witnesses as yet unsigned.

8.

Mr Brown for the defendants in full and careful submissions puts the case to me for a suspension either until 14 days after the decision of the appeal, or for a fixed period of, say, six to eight weeks. He relies on what he says are changed circumstances from those in place three months ago, first of all that evidence shows that despite serious efforts no alternative accommodation has come to light, and secondly, that the likely date for the result of the appeal is now known.

9.

Mr Harper for the claimants says that this is going again over ground considered by Mr Mackie, and is not a legitimate exercise. I must therefore look at what Mr Mackie said and how he decided the case. Since I have a full transcript which will be available to any other court which has to consider the matter, I need not quote much of it and I will only refer to the points which are, in the current situation, most salient. The judge said that there was no reliable indication at that time as to when the outcome of the appeal would be known. He reviewed the facts, the history, the planning history and the relevant planning control. He referred to the Court of Appeal decision in South Buckinghamshire DC v. Porter [2002] EWCA Civ 1549, [2002] 1 WLR 1359 , as setting out the principles governing the exercise of the jurisdiction under section 187B .

10.

He noted Mr Brown's submission that the planning process had not yet run its course because of the pending appeal. He said that the defendant submitted that the claimant had not had sufficient regard to factors relevant to Article 8 , in particular the personal circumstances of the defendants. He noted that the claimant said that there was no evidence of search for alternative accommodation, except in the most general terms. As regards the planning appeal at pages 14 to 15 of the transcript, he said that it was neutral since the outcome and even the likely date were uncertain. He also referred to the defendants having sought to pre-empt the result of the appeal by going onto the land.

11.

As regards alternative accommodation he said this at page 16 between lines 7 and 12:

“While the evidence of inability to find somewhere else to live is, no doubt, the honest estimate of the defendants who give that evidence, in my judgment these enterprising and resourceful people, given a measure of time, will be able to find something which meets their needs.”

His conclusion was that the injunction should stand, but that it should be suspended. At page 17, starting at line 20 he said this:

“Given the size of this operation, the order ought to be such that, within three months of today, all these defendants should have left. It seems to me that it would be unsatisfactory and undesirable to accept the defendants' request that the court tie the dates of departure to the outcome of a planning appeal when we do not know when it is going to come about. All the other considerations, in my judgment, point in a different direction. There will be an order requiring these defendants to leave within three months of today. It is important that it is understood that that means that all defendants should leave within three months of today. That no doubt requires that a number of them will leave at different times between now and the end of that three month period.”

12.

Thus Mr Brown can fairly say that Mr Mackie did not know how long it would take for the appeal result to be known, but Mr Harper is right to say that Mr Mackie regarded that date as irrelevant, since he rejected the idea of waiting for the outcome of the appeal in principle. Now the indication, according to a witness statement from Mr Eaton of the defendants' solicitors, is that enquiries of the Department of the Environment, Transport and the Regions indicate that the decision should be forthcoming “some time from mid-February”.

13.

Separately Mr Brown can legitimately say that the judge allowed three months on the basis that, despite the pessimistic views of the defendants, something would be found to meet the defendants' needs. In relation to this there is evidence from Miss Montgomery and from the defendants of very extensive efforts, none of which have borne fruit. There seems to be a real shortage of space useable for these purposes in the southeast of England as compared with the demand. It looks as if a combination of factors contribute to this. On the one hand show people want more space, both more, and more settled, living space, and also more space for the large number of rides and other equipment that they now have, and there may also be an increase in the number of show people wanting such space, the way of life being passed down from parents to each of several children, generation by generation. On the other hand, land values in the southeast are such that even the smallest parcels of what would otherwise be suitable land fetch prices for development way beyond the capacity of show people.

14.

A Circular 22/91 from the DETR concerned with travelling show people, reviews the planning considerations, and provides guidance with a view to reducing the problems apt to arise of which the present is an example. Among other things local planning authorities are urged to be open to discussion of show peoples' needs, both in relation to development control and when formulating local plans. The claimant has a local plan which was adopted in April last year in relation to which it notified the Showmen's Guild of the process, and thereby gave it the opportunity to request that some provision be made for the needs of travelling show people in the plan. In the absence of any response to that and of any applications for permission for such sites (other than the application under appeal) since 1980, the plan contains no express policy for travelling show people and states that proposals for new sites, or for development on the two existing sites that there are within the area of the claimant, will only be acceptable if consistent with the policies in the plan.

15.

The decision in South Buckinghamshire DC v. Porter shows that I should not consider the merits of the planning decisions taken, and Mr Mackie rightly did not go into that. The terms of his judgment are such as to allow the submission that if, for example, it had been forecast that the result of the appeal would be known at the beginning of February, he may have been prepared to suspend the injunction for four months instead of three, to allow for the possibility of success on the appeal, which may make it possible for the defendants to continue to use the site. If, however, he had had the evidence before him as to the failure of extensive searches for other accommodation which I have, it seems to me unlikely that he would have allowed as much as three months for the defendants to leave the site. He refers on page 6 of the transcript to the defendants organising “what will inevitably be their eventual withdrawal from the site unless the planning situation changes”. It was his view that, subject to the appeal, the defendants would have to leave the site despite the considerations relevant under Article 8 of the European Convention on Human Rights . That is not something that I can or would wish to re-open.

16.

As I said earlier, Mr Harper objects to the defendants' application on the basis that there is nothing new in it and no change of circumstances from what was argued before the judge, and therefore no basis for varying his order. As regards what was argued he may be right, and in some respects, for example, as regards the basis of the decision on the point that I have last mentioned, he is right. But as regards the basis of the decision, it seems to me that the passage that I quoted earlier about finding other accommodation has now been shown to have been over-optimistic in reality.

17.

Without going into the detail, the time which Mr Mackie thought would be needed to find other space has been used in extensive but fruitless searches. What then is the consequence of that? Does it allow the defendants to say that they should be permitted to stay longer just because there is nowhere else for them to go, or can the claimants say, on the other hand, that there is no reason to suspend the injunction at all, or at any rate for any longer than would be necessary to allow a reasonably orderly withdrawal from the site?

18.

Mr Brown does not put his case for the defendants on the basis that his clients should be allowed to go on using the site indefinitely, just because they have no alternative accommodation. He confines himself to asking, preferably, he says, for a suspension until, say, 14 days after the result of the appeal has been known, or alternatively for a fixed period of, say, eight weeks, in the hope that the appeal result will be known within that time. Such a period is longer than would be necessary for an orderly withdrawal for which 14 or 21 days would be sufficient.

19.

But for the pending appeal, it seems to me that the appropriate order would be to suspend the order only for a further short period so as to allow the defendants to leave in an orderly way rather than by 4.30 today. The justification for that would be that part of the judge's basis of decision has been shown by events to have been over-optimistic, that an orderly withdrawal had not been possible in the three months allowed, that the defendants would have to stop using the site, but that a short further period should be allowed for the site to be closed down and vacated. The planning appeal does not of itself alter that position.

20.

Mr Brown makes the point that it would be excessively hard and disruptive if the defendants had to leave now but could return to the site in mid February if the appeal is successful. He refers particularly to the effects of such disruption on some of the young children now living on the site, and on some people, both children and adults, who have particular medical problems. It is an attractive submission, invoking sympathy for the plight of the defendants and their families, which is described in the witness statements that I have referred to. The fact that the defendants came onto the site in flagrant breach of planning control in a well-organised operation last September and have remained there in face of these proceedings commenced at once, is clearly relevant but does not lessen my sympathy for the personal circumstances in which the defendants and their families find themselves, including the very fact of the lack of secure and legitimate accommodation.

21.

However, I cannot assume that the result of the appeal will be known by the middle of February. The evidence says only “from mid February”, which seems to me to be an earliest stage rather than a target. I dare say that the appeal is not straightforward and requires careful thought from the relevant Minister. That cannot be hurried. Also, I cannot assume that if the appeal were successful all the defendants would be able to say because there may be conditions to be attached to any permission granted as a result of the appeal. Accordingly, even assuming that I am entitled to have regard to the new evidence as to the likely timing of the result of the appeal, I am not persuaded that I should grant a suspension for as long as Mr Brown seeks. I certainly would not grant a suspension until a defined period after the announcement of the result of the appeal; that would be far too open-ended, nor would I proceed on the basis that an announcement in, say, five weeks is likely, and on that basis allow a suspension for some six to eight weeks. The evidence as to timing does not seem to me to justify that, and on that score, although the position is somewhat changed from that which prevailed at the time of the hearing before Mr Mackie, in essence it seems to me to be similar.

22.

What I will do is reconsider the period of suspension on the basis that Mr Mackie was over-optimistic as to the possibility of finding other accommodation, that the time that he allowed for withdrawal has in fact been taken up with fruitless searches, that there is, so far as can be discovered, no suitable alternative, that the defendants nevertheless cannot be allowed to stay on the site in breach of planning control, but that they should not be required to leave by 4.30 today, or if they do not, be exposed to the theoretical risk of committal proceedings.

23.

On that basis, and on that basis only and in order to allow time for the site to be closed down and for the defendants to leave in a more orderly fashion, what I propose to do is to suspend the injunction until Friday, 31st January at 4.30 pm, thereby giving the defendants a further two and a half weeks in which to make such alternative arrangements as they can. As I say, I accept that the evidence indicates that their predicament is extremely difficult and I have sympathy for that, but it does not seem to me on the evidence and on the law that I should grant any longer suspension.

I do not have a transcript of the judgment of Mr Mackie QC. However, in the light of paragraphs 10, 11 and 19-21 of Lloyd J’s judgment I consider that as regards the pending decision on the planning appeal it is fair to conclude that the approach taken by both Mr Mackie QC and Lloyd J was fact-specific. I do not find in their judgments, or in the judgment of Stanley Burnton J, a general principle that injunctions which should otherwise be granted under section 187B should not be suspended by reference to the expected result or duration of the planning process.

The decision of Stanley Burnton J in the Waverley case was drawn (albeit in summary form) to the attention of Crane J in Mid-Bedfordshire DC v Smith [2003] EWHC 932 (QB). In his judgment delivered on 15 April 2003 Crane J said:

13.

I have been helpfully referred by Mr Robb to a recent decision of Stanley Burnton J made on 6th March 2003 in Waverley Borough Council v. Lee, of which a short summary has been provided. In that case there had been a number of previous hearings before judges. The learned judge held that both judges in the earlier decisions were of the view that the court should not suspend the relevant injunction by reference to an expected result for the duration of the planning procedure. In the circumstances, in the absence of change of circumstances or some other relevant event since the previous order, he took the view that the previous order should not be varied. It seems to me that on the facts this case is different. This matter has not previously been before the court apart from the decision of Mr Goudie QC, I shall have to consider whether article 8 considerations, subject to the question of adjournment, indicate that a further stay is required.

…

22.

On the defendants' side the factors upon which they rely are conveniently summarised in paragraph 14 of Mr Willers' skeleton argument dated 11^th April 2003. He submits, at (a), that the defendants have a realistic prospect of success. As to that, it is difficult for me to form any view of the prospect of success. Various submissions have been made about that, but in my view it cannot be said that the prospect of success is so hopeless that the possibility of success on appeal can be ignored. I am not prepared to put the prospect of success higher than that. As to (b), it is accepted that these defendants have nowhere else to station their caravans. As to (c), it is not seriously disputed that a number of individuals living on the site suffer from serious medical conditions. Mr Robb's submission that those conditions have not significantly changed on such evidence as is before the court since June 2002 is in my view correct. However, a number of the individuals do suffer from ill health and the hardship therefore of being moved from the site would undoubtedly to that extent be made worse. It is not in dispute, as to (d), that a number of children attend local schools, and in view of the absence of anywhere close by to station the caravans, their schooling would undoubtedly be disrupted. In the result, I do not think there is any serious dispute that the eviction would cause hardship, and in my view the hardship would be considerable. Thus, although the evidence is certainly incomplete, there is no real prospect of challenging that the defendants would suffer not merely inconvenience but hardship if they are required to move.

23.

I return to the case of Porter and ask myself whether it would be proportionate to refuse a further stay when the purpose of the stay is to enable them to exercise their statutory right of appeal. As Simon Brown LJ pointed out in paragraph 33 in Porter, the decisions of the inspectorate are independent, and this will be the first independent decision that the defendants will have received relation to the present application. Asking myself the question whether it would be proportionate to refuse a stay to enable them to exercise their right of appeal, I find it clear that they should be given that opportunity.

24.

I shall therefore grant the stay until, subject to counsel's arguments, two weeks after the notification of the decision of the planning inspectorate.

In Oxfordshire County Council v Wyatt Bros[2005] EWHC 2402 Beatson J considered whether injunctive relief should be deferred pending the outcome of a planning appeal. His judgment dealt with this as follows

68 The argument that relief should be deferred pending the planning appeal has to overcome the hurdle that in general, while a short period of suspension might be appropriate, injunctions which should otherwise be granted should not be suspended by reference to the expected result or duration of the planning process: see Waverley BC v Lee [2003] EWHC 29 (Ch), EWHC 941 (QB). That this is not invariably so is shown in Mid-Bedfordshire DC v Smith [2003] EWHC 932 (QB). I do not, however, consider that relief should be denied in this case on this ground. First, to do so would result in a further delay in respect of a breach of planning control that commenced as long ago as 1997. Secondly, as stated earlier in this judgment, the application for planning permission does not cover the whole site. Thirdly, I take into account the fact that this is the third application for planning permission. The last one was refused on 21 May 2002 and the appeal from the May 2001 application was dismissed in September 2003. The first defendant has had a substantial opportunity to seek to remedy his breach by making a suitable planning application. I have, for the reasons given above, concluded that the claimant did not “move the goalposts” as to its indications of what would be acceptable to it during that time or since its refusal of planning permission in May 2002. In these circumstances the further delay is not justified.

69 Fourthly, although there will undoubtedly be a financial loss to the first defendant if its appeal ultimately succeeds, this loss must be seen in the light of its history of breaching planning controls and the length of time for which the present breach has continued. Fifthly, I take into account the inspectors' decisions as to the seriousness of the breach.

In New Forest District Council v Shutler [2005] EWHC 3122, a decision of Bean J dated 15 December 2005, it was noted at paragraph 29 that counsel accepted “the principle that, as Beatson J put it in Oxfordshire County Council v Wyatt Brothers (Oxford) Ltd [2005] EWHC 2482 , in general (though not invariably), while a short period of suspension may be appropriate, injunctions which should otherwise be granted under section 187B should not be suspended by reference to the expected result or duration of the planning process.” Here Bean J was simply recording a concession by counsel. As to that concession, paragraph 68 of the judgment of Beatson J in so far as it identified a general principle immediately went on to qualify this, referring the reader to the Mid-Bedfordshire case where an approach contrary to any such general principle is adopted. Moreover in paragraph 69 Beatson J did not rule out the first defendant’s contention that there would undoubtedly be a financial loss if its appeal ultimately succeeded. On the contrary, Beatson J expressly considered that contention and concluded that it was outweighed by other factors.

As was observed by Simon Brown LJ at paragraph 40 of his judgment in South Bucks, while the court cannot question the existing planning status of the land,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. The “planning authority” no doubt includes the Secretary of State on an appeal. In my view the possibility that an appeal may be successful is a factor which a court can take into account when deciding whether to grant an injunction under s 187B. The court must of course recognise that it does not have the function of deciding the appeal. It will be for the court to decide whether in all the circumstances it can give weight to the possibility of success on the appeal - and if so, how much weight.

I have dealt in the previous section of this judgment with Miss Sheikh’s submissions on relevant legal principles. As to the facts of the case, she asserted that the appeal had only been filed as a further attempt to delay compliance with the requirements of the enforcement notice. On each occasion that Barnet had considered the planning merits it had concluded that use as a school was unacceptable. That appraisal was upheld by the inspector. His role was independent, and for that reason his views were entitled to strong weight. The issues now raised by Mr Ormonde were all considered by the inspector. The decisions taken by Barnet in relation to No. 209 involved no inconsistency with Barnet’s stance in relation to No. 211. As to the assertion that the current level of noise made No. 211 inappropriate for residential use, the Decision Letter said in paragraph 21 that there was nothing inherently unsuitable about the nature of the property or its location that would significantly detract from its capabilities of continuing in residential use. No replacement housing was proposed. Nothing had changed in relation to noise, and local residents were still suffering the unacceptable harm identified by the inspector. It was essential that there be finality. This was a case of prolonged and flagrant breach of planning control. The defendants had continued to enrol pupils at BHES in defiance of the requirements of planning control and it was clear that they would not comply with the enforcement notice in the absence of an injunction. There had been ample time to comply. The new planning application had only been submitted once it was clear that Barnet was taking action. There had been strong conclusions by both Barnet and the inspector on the unacceptability of the land use and the environmental harm. The breach of planning control could be remedied readily by the defendants ceasing use of No. 211 as a school. As regards the need to find alternative places for pupils, the timing of the present claim ensured minimal disruption, falling at the end of the school year. The relative inconvenience to pupils enrolled at the school of having to find alternative places was outweighed by the other factors in the case and the public interest in upholding planning decisions.

Mr Alesbury stressed the fundamental point made by Simon Brown LJ that the court must be prepared if necessary to contemplate committing the defendants to prison for breach of the order. The question was one of proportionality, and it would be completely disproportionate to close down this school at the present time. A decision on the appeal should be available by Tuesday 3 November 2009. If Barnet won on the appeal then “the problem has gone away completely”. He accepted, however, that one side or the other might consider taking the matter further, and could go to the High Court on a point of law without permission. As to the prospects of an appeal, he submitted that changes of circumstances showed a reasonable prospect of success. First, there was inconsistency in the weight given to the notional loss of one residential unit. Such a loss had occurred immediately next door at No. 209 with the approval of Barnet. While the inspector noted this as part of the background, nowhere else in the Decision Letter was this factor examined. Private study and tutorial use may have been thought akin to residential use, whereas use as a synagogue plainly was not akin to residential use. Points on the figures for housing targets should be matters for the planning inspector. It could not be said that Barnet had an overwhelming case when its own planning committee had decided the matter on a split 4/3 vote. Turning to noise, there had been no expert witness when the matter was considered by the inspector. There were now specific measurements taken by Mr Rook. The court did not know what actual specific measurements were taken by Ms Cane. There was a serious issue between professionals here and it could not be resolved by the court. As to letters of complaint cited by Barnet there were equally letters of support. The defendants had made reasonable attempts to find alternative sites, attempts which were thwarted for mixed reasons. As to alternative school places for the boys, there was no sound basis for going behind the letters written by each of the 3 suggested schools. It was not proportionate to force the school to close now when summer holidays had begun, and there was a reasonable prospect of success before the inspector.

In my analysis I shall refer to what has been done by or on behalf of the school prior to the recent appeal before turning to consider the position thereafter. I do not consider that the school was guilty of deliberate delaying tactics. During the period up to the autumn of 2008 the school made substantial efforts to find alternative locations. Ms Rajput’s letter of 13 August 2008 implicitly recognised that at that stage it would be wrong to require the school to shut down immediately. Instead, Barnet required that the school should cease operations by January 2009. I do not criticise the school for thinking that in late 2008 and early 2009 it had a real prospect of securing planning permission. The narrow margin by which the application for planning permission was defeated on 1 April 2009 shows that the school had good reason to think that there was a real prospect of success

Nevertheless it is in my view clear that the school during the period to mid – 2008 took far too long to grasp the nettle. The inspector gave sound reasons for thinking in May 2006 that a period of 11 months should be ample for the school to resolve the position. What happened was that a very late arrangement for an alternative location appeared to be in place about a year after the inspector’s decision, but then fell through. Barnet in my view gave all due consideration – and indeed more than due consideration – to the school by taking the course that it did through to August 2008. It was entirely reasonable for Barnet to stress to the school in the letter of 13 August 2008 that the enforcement notice must by complied with no later than January 2009. The inspector considered that the harm caused by the breach of planning law was serious – both as regards the loss of residential use and as regards the environmental harm caused to those living in the locality. There was a short period in which a new application for planning permission had a real prospect of success, but that application has been considered and rejected. If I put on one side the appeal and the question of alternative arrangements for the boys, I would have no hesitation in concluding that an injunction under s 187B could properly be the subject of an application to commit if it were not complied with. Leaving those two matters on one side, the factors identified by Simon Brown LJ overwhelmingly point to the grant of an injunction.

I turn to the appeal. The determination of the appeal must be a matter for the inspector and nothing which I say is intended to usurp the functions of the inspector. I seek only, by reference to all the circumstances known to me, to determine whether I can give weight to the prospects of success on an appeal. I conclude that I cannot give any substantial weight in this regard. On ground (3) as set out in paragraph 36 above, Ms Cane says that even though the background noise may fall within category C, this would not prevent Barnet from granting a new application for residential use in accordance with established policy. If she is right, that completely destroys Mr Rook’s point in this regard. Even if she were not right, Mr Rook’s point is of very limited significance, as it goes only to the question whether a new residential use would or would not be permitted and not to the question whether a property already lawfully designated for residential use should have that designation altered. On ground (2), the contention that there is inconsistency in relation to No. 209 has not been advanced as a major factor. I cannot see anything so significant in it as would entitle me to give any weight to the prospects of success on an appeal. That leaves ground (1), the question of noise generated by use as a school. I do not consider that Mr Rook’s report has been procured in order to try to defeat the present application. Mr Rook made site visits in May this year, and must have been instructed at some stage earlier in the spring. This is consistent with the school coming to realise that Mr Hines had discounted the possibility that actual levels of noise from the playground would not be as great as the typical levels which he had used in his calculations. It seems to me that in the appeal the school is pinning its hopes on Mr Rook establishing that Mr Hines was wrong to discount that possibility. I cannot give this any substantial weight for 2 reasons. First, Mr Rook’s measurements are in conflict with those of Ms Cane. Mr Rook says that he does not have information about Ms Cane’s measurements, but this overlooks the detailed figures given by her in the Cane Report. Second, Mr Hines explained why he had not sought to take actual measurements. Paragraph 1.03 of the Hines Report said that this was because of “the considerable variation in noise levels that exist in such areas in any one time during break times (weather/number of students etc.)…”. On the face of it that is a very sensible reason for not regarding particular measurements at particular times as having determinative force.

Turning to the question of alternative arrangements for the pupils, it seems to me that the pupils and their parents must recognise that they have only had the benefit of places at BHES because BHES contravened planning law. If BHES cannot find a location that complies with planning law, then in the circumstances of the present case it is just and proportionate to require them to accept that the position will have to revert to what it was before BHES was established. In some, perhaps many or even all, cases this may require a degree of compromise as to the precise nature of the education that is provided for a pupil. Any inability to find a school which is identical to BHES does not in my view outweigh the importance of bringing to an end the harm which has been identified by the inspector.

It does not follow, however, that it would be right to allow the injunction to come into force immediately. I recognise that parents have now had a considerable time in which to make alternative arrangements. The obvious alternatives, albeit possibly unsatisfactory to the parents and pupils, are the three schools which have been identified in evidence. The letters before the court do not indicate that any parent has made arrangements for their son to be enrolled in any of these schools, and I would have expected that to have been stated if it were the case. When considering the position almost a year ago Barnet rightly recognised in the letter of 13 August 2008 that it will be wrong to expect pupils and their families notified of the position in the summer to find an alternative place for the autumn. I shall therefore direct that an injunction shall be suspended until the end of December this year. I stress that I am not doing this in order to await the outcome of the appeal – as I have said I cannot give any substantial weight to the prospect of success in the appeal. The suspension is only so that orderly arrangements can be made for the boys to continue their education without interruption.

For these reasons I shall grant an injunction suspended until 31 December 2009. When circulating this judgment in draft I asked that counsel seek to reach agreement as to the terms of an order in relation to particular defendants. After discussion when I handed down my judgment this morning the parties were able to achieve a considerable degree of agreement. First, the existing second and fifth defendants will be removed, and the existing third and fourth defendants will become the second and third defendants respectively. Second, the defendants have given undertakings which have enabled agreement on the precise matters which the injunction will prohibit, subject only to one point. This concerns a suggested proviso under which the prohibition would lapse if express planning permission were granted. Mr Alesbury submitted that such a proviso was desirable: it would only apply if use as a school was permitted under planning law, and would obviate the need to return to court in that event. I did not consider that this would be satisfactory. In order to ensure that the terms of the injunction are clear and that the substance of what is prohibited is certain I consider that if there is any further relevant development as regards planning permission the matter should return to this court for consideration whether, and if so precisely what, alteration to the injunction is appropriate. I have made an order accordingly.