Brentwood Borough Council v Ball & Ors

Confronted with what it appears to have assumed to be a well organised and deliberate attempt to present it with a fait accompli designed to pre-empt any attempt by the Council to stop the Defendants moving onto Plot 3, the Council appears to have taken the view that this factor was sufficient in itself to justify an immediate application for an injunction under section 187 B to restore the status quo ante. Such an application was in the Council’s view necessary to uphold the principle of complying with planning law and the rule of law itself. In a witness statement served in support of the application Mr Finnin, the senior planning enforcement officer employed by the Council, stated that the development had inflamed local opinion and exhibited an online newspaper article which he said gave a flavour of the sort of reaction generated by the development, although he denied that the Council was applying for an injunction because it was unpopular with the settled community.

It is not difficult to feel some sympathy with the Council’s initial reaction. However, in my judgment, it appears to have been led by this reaction into error in its response which did not follow the approach carefully laid down by the House of Lords in the Porter case. First there is no evidence that before reaching the decision to apply for an injunction the Council investigated the circumstances leading up to and the reasons for the Defendants’ decision to bring their caravans onto Plot 3 and take the other steps which they took on the Easter weekend. Indeed the timing of the application suggests that it did not do so. Thus the application for an injunction was issued on 21 April 2009, a week after the Defendants had moved onto the site and carried out their earthworks. In Mr Finnin’s witness statement which is dated 24 April 2009 , the only evidence of any contact between the Council and the Defendants (other than a second visit to the site by him on 14 April for the purpose of serving temporary stop notices on the occupiers) was a visit to the site on 14 April by him and a Ms Brett, an environmental health officer, to attempt to gain information about the Defendants and their households and to take pictures of the site. No details are given as to the nature of the information which he sought to obtain or did obtain but there is a possible inference from the witness statement that his principal concern was to ascertain their names for the purpose of being able to name them as defendants in an application for an injunction. With one exception referred to below there is no evidence that Mr Finnin asked the Defendants any questions or made any other enquires to establish why they had moved on to the site without planning permission or what would be the consequences for them and their families in the event of an injunction being sought and granted.

Second it does not appear from Mr Finnin’s witness statement that before deciding to apply for an injunction the Council fully considered the personal circumstances of the Defendants, named and unnamed, and their families and any hardship which an injunction might cause to any or all of them or addressed its mind to the question whether those factors were outweighed by the necessity or expedience of seeking injunctive relief. There is no reference in his witness statement to any of the circumstances or reasons leading up to the Defendants’ decision to move onto the site and with one exception no reference to any of the matters relied on by the Defendants in opposition to this application as evidence of the hardship that would be caused to them and their families if they were forced to leave Plot 3. That exception is a reference to being told on 14 April 2009 that one of the occupiers was expecting a baby imminently. Mr Finnin appears to have considered that this might be a reason for giving that family an appropriate period of time to leave the site rather than a personal circumstance which should be balanced against the public interest in enforcing planning control when the Council considered whether it was proportionate to apply for an injunction at all at that stage.

Although Mr Finnin stated that the information gleaned from his visit on 14 April did not suggest that there was any justification for what in his view was a deliberate breach of planning control, he did not elaborate on what that information was. Similarly although there is a general statement in his witness statement that he “recognised the occupiers’ need for accommodation and their Convention right to respect for their home and family life”, there is no reference to any particular personal circumstances relating to the Defendants individually (apart from the one mentioned above) and no evidence that such circumstances, or even the Defendants’ need for accommodation and their Convention right to respect for their home and family life, were considered and weighed in the balance by whichever official(s) or Councillor(s) took the decision to apply for an injunction.

If anything such limited material as there was before the Court on this issue suggests that it was not .Thus in the online newspaper article exhibited to and relied on by Mr Finnin, which was last updated early on the morning of 17 April 2009, a local Councillor was quoted as saying: “We couldn’t get an injunction because of the bank holidays.” A spokesman for the Council was quoted as saying: “On Tuesday morning, as a matter of urgency an emergency meeting was held between councillors and officers to plan the way forward. Following this meeting, enforcement officers along with environmental health officers visited the site to determine what action can and will be taken.” Councillor Keith Parker, chairman of the Council’s planning committee was quoted as saying: “The council will robustly pursue this matter.”

There is no indication in Mr Finnin’s witness statement that consideration was given by the Council to the question whether an application for an injunction under section 187 B might be premature, either because all other remedies for securing compliance with planning law had not been exhausted or because there were no circumstances of sufficient urgency to justify an injunction . It is true that he served temporary stop notices on the Defendants on 14 April and it may be that the Council assumed that because of what it took to be the Defendants’ attempt to present the Council with a fait accompli they would not comply with stop notices or enforcement notices and that they would not respond to a criminal prosecution. However there is no evidence that anyone in the Council went through this thought process or considered these matters. Nor is there any evidence that the Council was aware, before deciding to apply for an injunction, that some of the Defendants had been aware before they entered the site that in doing so they would be in breach of the 2001 enforcement notice so that it might be assumed that they would not respond to criminal prosecution.

There are two matters which, in my view, are not easy to reconcile with any suggestion that the granting of an injunction can be justified by considerations of urgency. The first is that the Council tolerated criminal breaches of enforcement notices prohibiting the use of Plots 1,2 and 3 for residential purposes and the presence of mobile homes thereon for many years without ever making an application for an injunction under section 187B. This is of particular significance in relation to Plot 3. Further in the case of each of those Plots, the conduct of the occupiers prior to the arrival of the Defendants on Plot 3 was arguably more blameworthy and more indicative of a persistent refusal to comply with planning law and enforcement notices than that of the Defendants. Those occupiers had been in residence for a period of years and had ignored not only stop notices but enforcement notices and criminal prosecution.

The Council submits that the scale of breach of planning control on the part of the Defendants is greater than that of Mr Udall, the Betts and Mrs Corrie. That is undoubtedly true. However the Council itself in support of its application for injunctive relief against the Defendants relies on the fact that the inspector who dismissed Mr Udall’s appeal against refusal of planning permission in April 2003 stated that the mobile home, small out buildings and hard surfaces installed by Mr Udall had given the land a domestic appearance and that the change in local character was visible from the road and the wider area and concluded that the development had resulted in a loss of openness and formed a harmful encroachment in the countryside. To like effect were the comments of the inspector who rejected Mr Udall’s appeals against the enforcement notices dated 5 February 2001 in respect of Plot 3 on which he had erected a shed, access track and formation of associated hard standing and placed touring caravans. That inspector described Plot 3 as a particularly open site and although the road side trees provide some screening during summer months stated that he could well understand the concerns of the Council as to the prominence of the site in winter where the trees would have shed their leaves. He viewed the harm to the Green Belt as serious and did not believe that the personal factors relating to Mr Udall outweighed the very cogent policy and environmental objections. It is of particular note that he considered that those objections could not properly be overcome by attaching a condition limiting the number of caravans on the site to two.

The Council submits that the Defendants’ current use of the site is far more extensive and harmful to the openness of the Green Belt, the safeguarding of the countryside from encroachment and the character and appearance of the area than the previous use of the site by Mr Udall. Without the benefit of a site visit there are limitations on the ability of the court to reach meaningful conclusions on such a submission. Nonetheless I am prepared to accept, if only as a matter of common sense, that the scale of the Defendants’ development is likely to represent a more significant undermining of the benefits of the Green Belt than that of Mr Udall. They brought 14 caravans on to Plot 3. The decision of 15 June 2009 by the Council refusing the Defendants’ application for retrospective planning permission concludes that the development causes significant harm to the openness of the Green Belt. On the other hand, based both on the findings of the two inspectors already referred to and some photographic evidence, it also seems to me reasonably clear that the pre-existing development certainly on Plot 3 and arguably on Plots 1 and 2 represented a detriment to the environment such as would have entitled the Council to give serious consideration to applying for injunctions under section 187 B against Mr Udall, the Betts (and Mr and Mrs Aldwin, as to whom see below) and Mrs Corrie. The fact that it did not apply for injunctions against any of them over a period of several years, while not in any way being determinative of the merits of this application, does, in my judgment, go some way to undermining any suggestion that the environmental damage caused by the Defendants is of so serious a character as to make the need for its removal a matter of urgency. I also note that the decision of 15 June 2009 refusing planning permission records that it is considered by the Council that the development does not harm the amenity of nearby residents or, based on the advice of the Highways Officer, highway safety and thus complies with Local Plan Policies CP1 and T2 in those respects. I further note that in a letter before the court the current occupiers of Plot 1, a Mr and Mrs Aldwin, who appear to have succeeded Mr and Mrs Betts as occupiers of the mobile home on Plot 1, write that after the shock of the Defendants moving onto Plot 3 “they have settled in and are very quiet, clean and tidy and have not been a problem to us.”

I observe in passing that the failure of the Council to apply for injunctive relief against any of Mr Udall, the Betts and Mrs Corrie points, in my judgment, strongly against the Defendants’ submission that the decision to apply for an injunction against the Defendants appears to amount to racial discrimination when other unlawful occupiers have not been subject to the same application. Reliance in this regard is placed on Mr and Mrs Aldwin, the current occupiers of Plot 1.. In a letter before the court Mr and Mrs Aldwin state that they are not travellers. Neither is Mrs Corrie a gipsy. However it appears to be the case that during the period following the failure of their appeal against the refusal of planning permission in 2001 and the decision of the inspector in relation to Plot 3 in April 2003 the Betts remained in breach of the enforcement notice applicable to Plot 1 and that the Council did not seek an injunction against them. The Betts were gipsies, Mrs Betts being Mr Udall’s daughter. Mr Udall was also a gipsy.

In my view, the significance of the Council’s failure to apply for injunctive relief against Mr Udall, Mrs Corrie, Mr and Mrs Betts, and Mr and Mrs Aldwin is not that it supports any suggestion of racial discrimination. It does not. Rather it is that it detracts from any suggestion that prior to the arrival of the Defendants the removal of mobile homes or caravans from Blackmore and the restoration of Plots 1, 2 and 3 to agricultural use was or was regarded by the Council as a matter of urgency such as to make an application for injunctive relief necessary or expedient.

The second matter is the fact that on 1 May 2009 at the hearing of the Council’s application for an interlocutory injunction, the Court did not grant an interlocutory injunction requiring the Defendants to leave the site until the hearing of the substantive application but rather was prepared to allow them to remain on the basis of undertakings by the six named Defendants and an order against the unnamed Defendants not to bring any more caravans onto Plot 3 beyond the existing 14 and not to carry out any further works until the substantive hearing of the application for an injunction. As a result there was no prospect of the Defendants being removed from Plot 3 prior to the substantive hearing of the Council’s application which did not take place for a further seven weeks. This, in my judgment, further detracts from any suggestion that the removal of the defendants is a matter of such urgency as to require the sanction of an injunction.

By the time of the hearing on 1 May 2009 the Defendants had issued an application for retrospective planning permission. It was the evidence of Ms Mathews, the planning officer who dealt with it, in a witness statement dated 22 May 2009 that she considered it highly unlikely that any sort of permission would be granted to the Defendants by the Council or on appeal. In the event the Defendants’ application was refused by the Council’s planning authority itself on 15 June 2009 and, as previously mentioned, the appeal to the inspector is scheduled to be heard on 6 and 7 October 2009. Thus on the Council’s case there was a likelihood that a final determination that the Defendant’s conduct could not be sanctioned by planning permission will be made when the inspector announces his decision. Had the Council had evidence that the removal of the Defendants for the period between 1 May 2009 and judgment on the substantive application for an injunction was a matter of urgency one would have expected it to put it before the Court and had such evidence been compelling one might have expected the Court to grant an interlocutory injunction. There was no suggestion made to me that there were factors which made the removal of the Defendants during the period between the hearing of this application and the publication of the inspector’s decision more urgent than their removal during the period between 1 May 2009 and judgment on this application.

The six named Defendants all served witness statements and gave oral testimony. So too did Mr Green. The six named Defendants gave their evidence in an open and straight forward manner. They readily accepted that Mr Green had advised them not to move onto Plot 3 without planning permission and that when they did so they knew that they were thereby in breach of planning law and remained in breach of planning law by their continuing residential occupation of the site. I found them honest and truthful witnesses and accept as truthful their accounts of the circumstances leading up to their decision to purchase and move onto Plot 3. Those circumstances are broadly as set out in paragraphs 2, 3, 4, 5, 6, 9 and 23 above.

Notwithstanding the named Defendants’ admitted knowing breaches of planning law, the overall picture presented did not in my judgment support and indeed fell far short of supporting findings of the kind of conduct and attitude to the law and the planning process, namely “a history of unsuccessful enforcement and persistent non-compliance [or]…evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay” which Lord Bingham identified as examples of the type of case where the task of the court might be relatively straight forward. I would emphasise in particular the following parts of their evidence.

First it is clear that for a period of many months the Defendants made genuine efforts to identify land which would be suitable for their collective and individual needs and would be likely to obtain planning permission. Their intention at the outset and their clear preference was to proceed in compliance with planning law.

Second in pursuit of that objective they liaised with and took advice from local planning officers. Thus they had discussions with a planning officer of the Broxbourne Council in relation to a site in Broxbourne, a few miles west of Plot 3, and did not instruct solicitors to agree to the drawing up of a contract for the purchase of that site until they had advice from him that it would be a good site for them to stay on. There was correspondence between them and the Broxbourne Council in relation to what they should place on the site. When that fell through they proposed two or three further sites to the Broxbourne Council all of which they were advised by the Council were unsuitable for their purposes and would be unlikely to receive planning permission.

They then found an old mushroom farm in Nazeing, Essex and some of them met a planning officer of the Epping Council who told them that they would not get planning permission on that land because it was within a flood risk area. They asked this official for his advice about where they could find land and he told them that if they found something east of the M11 where the only difficulty was that the land was in the Green Belt the Council would be likely to pass it as being suitable. Plot 3 was indeed east of the M11, albeit on the far side of the boundary with Brentwood, a fact which the Defendants discovered only shortly before they bought Plot 3.

Third the Defendants took advice from Mr Green’s firm of planning agents first in relation to the land in Broxbourne, in respect of which they instructed him to make an application for planning permission (albeit the purchase fell through before the application was lodged), second in relation to the land in Nazeing and finally in relation to Plot 3.

Fourth they genuinely believed before they moved on to Plot 3 that they would be likely to or at any rate have a good chance of obtaining planning permission, even if only temporary, and even if only following an appeal. This belief was based principally on the advice they received from Mr Green but also on the earlier more general advice which they were given by the planning officer from Epping. The genuineness of this belief derives support from Mr Green’s evidence from which the strength of his conviction that they were likely to get planning permission on appeal shone through. It also derives support from the fact that they were prepared to risk £80,000 on buying a Plot which, in the event of planning permission being ultimately refused, would be likely to make it very difficult for them to purchase an alternative site.

Fifth while they accepted that Mr Green advised them not to move onto the site until and unless they obtained planning permission, they were aware that there were already mobile homes on Plots 1, 2 and 3 which had been on site in breach of planning law for some time. They believed with some justification that this state of affairs was one which had been tolerated by the Council or at least which the Council had taken no steps to bring to an end by seeking their removal, and they assumed, no doubt misguidedly and as it turned out incorrectly, that if they moved on to Plot 3 there was a good chance that the Council would not take steps to remove them.

One of the Defendants stated that the owner of Plot 3 had a mobile home already on it and had told them that he had been there for about 9 years, he had made a previous planning application which had been turned down but the Council had never tried to get him off. In addition there were two other families occupying homes on Plots 1 and 2. He stated that they all thought that because there were mobile homes already on Plots 1, 2 and 3 it would be safe to buy Plot 3 and, I infer, that since the Council had not taken steps to remove the existing occupiers of Plots 1,2,and 3 and had tolerated their unlawful occupation there was a good chance that it would not take steps to remove the Defendants if they moved on before the determination of their proposed application for planning permission. Another Defendant stated that he could see from Mr Udall’s mobile home that nothing had been done to try and remove him from the land and that he thought that the situation was that provided he did nothing else he could stay. A third stated that he thought that it would be safe for the Defendants to move on to the land. A fourth stated that the previous owner had told him that an application for planning permission had been turned down in 2000 but that nothing had ever been done to remove him from the land. He also knew that there were two other mobile homes on Plots 1 and 2 and therefore thought that the Defendants would be able to place their caravans on Plot 3 and get planning permission.

Although they knew that by moving onto the site without planning permission they were not only jumping the gun but acting unlawfully, this was not a case of people who had no reason to believe that they would get planning permission, or indeed every reason to believe that they would not, or of people whose conduct throughout displayed a contempt for, lack of interest in or refusal to spend the time and money involved in seeking to proceed in accordance with planning law.

The Council submits that a particular factor to be weighed in the scales against the Defendants is that their conduct was to their knowledge not just unlawful by reason of not having the sanction of planning permission but also criminal by reason of being in breach of the 2001 enforcement notices. The evidence of the Defendants as to their state of mind on the enforcement notices was not uniform. Mr Smith gave no evidence as to what if anything he knew about the enforcement notices, but stated that the Defendants had instructed Mr Green to make a planning application and that in the meantime he thought it would be safe for them to move on to the land. Mr Moss stated that initially when the Defendants found Plot 3 and talked to Mr Udall they did not know that there were enforcement notices on the land which would stop them doing anything, it is fair to say that before completion of the purchase he did know about them but he thought that they only related to Mr Udall and would not affect anyone buying the land. In oral testimony he stated that he did not understand about enforcement notices. Mr Loveridge stated in his witness statement that it is fair to say he did become aware of the enforcement notices on the land but thought that they only affected Mr Udall and that if new owners bought it, they could still apply for planning permission and would not be affected by the notices. However in cross examination he accepted that he had been told about an enforcement notice by Mr Green and that it all depended on how the Council decided to react. It might decide not to enforce the enforcement notice and leave the Defendants on Plot 3, it might prosecute them and they might be fined £100 or it might make an application of the sort which has now been made. Mr Vanslow Ball said in oral testimony that the Defendants knew that there was an enforcement notice and had initially intended to approach the Council but later on decided that there was no time to do so. Mr Vinden in his witness statement stated that he knew about the enforcement notices before the purchase went through but was not certain what effect they had and believed that they only stopped the previous owner from doing anything on the land and would not affect the Defendants. However in cross examination he stated that he knew that there would be a breach of the enforcement notice if the Defendants moved on to Plot 3, although this has to be seen in the context of his evidence that he knew that no steps had been taken by the Council to remove the mobile homes unlawfully occupied by the existing owners of Plots 1,2 and 3. Mr Walter Ball accepted in oral testimony that “we” knew about the enforcement notice and that Mr Green had said that they would be in breach of it if they moved on to Plot 3 which might result in a fine, but the Defendants had been in a great urgent need of somewhere to go rather than being parked on the roadside.

From Mr Green’s evidence it appears that the two Defendants he actually met on site at Plot 3 and gave advice to were Mr Walter Ball and Mr Vinden. He could not remember whether he also discussed matters with Mr Loveridge on the telephone later. Although he undoubtedly advised Mr Ball and Mr Vinden not to move on to the site in advance of planning permission and he mentioned the enforcement notices it is not clear from his evidence whether he mentioned them in the context of his advice that it would be unlawful to move in without planning permission. He did mention them in the context of his advice that the likely outcome of a planning appeal would be the grant of long temporary planning permission, when he said that the notices cut both ways in that the failure of the Council to remove the existing mobile homes despite the enforcement notices could be said to have altered the character of the site such as to diminish any environmental damage argument.

Sixth, although they did not inform the Council in advance of their moving onto the site of their intention to do so, the Defendants were at least in part influenced by the fact that they suspected that the reason why their proposed purchase of the earlier site in Broxbourne had fallen through, after they had incurred legal and planning agent fees, was that a Broxbourne Council official had tipped off the seller to the fact that they were gipsies. There was no evidence before me that that had in fact occurred, but what is relevant for present purposes is not whether it had occurred but rather that their suspicion that it had occurred led them to fear that a cards on the table approach might lead to a similar outcome in respect of Plot 3. This particular factor is in my view of only marginal assistance to the Defendants as a factor mitigating their deliberate breach of planning law since by the time they moved onto Plot 3 they had already purchased the land so that there was no risk of the purchase falling through in the way that it had at Broxbourne.

Seventh although the named Defendants knew that by moving onto the land without planning permission they were breaking planning law, there was an element of desperation in their decision and the alternatives were not free from a significant risk of either acting unlawfully in different ways or of exposing themselves and their families to danger or both. Thus most of them had previously occupied sites in an unlawful manner, whether by doubling up on other gipsies’ pitches or by being otherwise in breach of planning law by for example parking in lay-bys. Some had been squatting on a pitch at Tylers Cross which they left because of a series of violent incidents leading up to a shooting and the arrival on site of armed policemen.

Eighth despite searching for several months, in at least one case for as long as 18 to 24months and in another for 12 to 18 months, the Defendants had identified no other suitable site where they could lawfully reside whether in the long term or while they awaited the outcome of the planning application for Plot 3 which they intended to lodge with the assistance of Mr Green’s firm.

Ninth, this leads to the more general reasons why the Defendants purchased Plot 3 and wanted to move onto it. Put shortly, a shortage of suitable sites has made travelling much more difficult. It has become impossible to spend a life permanently on the road and necessary to have a base to which they can return. Added to this was the need for their children to have a permanent base from which they could either attend school or have home teaching and the desirability of a fixed residence to facilitate proper medical attention for various of the Defendants and members of their families. By way of example the wife of one Defendant suffers from an irregular heart murmur which makes moving from place to place difficult and is aggravated by the uncertainty involved in a peripatetic lifestyle. Another Defendant had a daughter who had attended 10-12 schools in the previous 18 months as a result of all the moving he had had to do. Each time she started going to a new school she had to begin at the beginning and was therefore behind. He had been advised that she needed a speech therapist.

Tenth in relation to the critical decision to move onto the land without prior notification to the Council, it was put to one of the Defendants in cross examination that the Defendants’ reason for not contacting the Council in advance was because they knew that if they did the Council would take steps to stop them getting onto the site. His answer was disarmingly honest. He said that they were frightened that the Council would take steps to stop them just as they thought that the Council in Broxbourne had stopped them by contacting the seller of the land they were on the point of buying there, who, having been eager to sell suddenly went cold within days. Having decided to go about things in the proper way at Broxbourne and had that response from the Broxbourne Council, they were frightened that the Brentwood Council would stop them from moving onto the site if they told them of their intention. “Then we would be breaking the law on lay-bys. We would rather break the law on our own property with our children going to school and not running up and down in a car park.” I accept his evidence in answer to an earlier question that this decision had not been taken at the outset prior to the purchase of the land, at which point the defendants had intended to consult the Council before moving onto Plot 3. He stated that they had been aware of the existence of an enforcement notice and had not intended to move on in breach of it. The decision to move on without first informing the Council was taken after the land was purchased because of an impending operation for his father-in-law and the imminent birth of a baby to the wife of another of the Defendants, Mr Smith. Mr Smith himself stated that it was “certainly necessary” to move on to the land because of the birth of his baby which was due to take place shortly. The baby was due in two weeks and the only alternative to moving on to Plot 3 would have been to park by the side of the road which would have been dangerous and also unlawful. They had nowhere else to go. It is an irony that one of the reasons why the Defendants brought Plot 3 was because they wanted to own a place where they could live without breaking the law which is what most if not all of them had been doing whether by parking by the side of the road, in car parks or doubled up on other people’s pitches.

The Defendants submit that the effect of an injunction removing them and their caravans from Plot 3 would cause significant hardship to them and a disproportionate interference with their Article 8 rights which outweigh any arguments in favour of the grant of an injunction. They rely on a number of matters.

First none of them has any alternative available accommodation or any realistic prospect of obtaining such accommodation either in the short term or even in the foreseeable future. On the evidence before the court I accept that at least on the balance of probabilities this is correct. The Defendants were cross-examined on where they had been living before moving onto Plot 3 and what steps they had taken to seek alternative accommodation. In general terms they had been staying on pitches belonging to other gipsies on which their caravans were unlawfully doubled up and which were needed by their owners for members of their own families. The pitch at Tylers Cross, on which some of them had been staying, would be wholly unsuitable, given the real danger to the Defendants and their families from the violent behaviour of other occupants of the site.

Although the Council is committed to authorising a further 15 pitches in Brentwood, the sites provisionally earmarked by the Council, which are subject to a consultation process, are already occupied by other gipsies. Mr Green of counsel who appeared on behalf of the Council submitted that under the East of England Regional Plan there will be new provision in other parts of East England to cater for unmet need, from which the Defendants could benefit. In a witness statement dated 22 May 2009 in support of the Council’s application Ms Mathews, the case officer responsible for assessing and reporting on the Defendants application for planning permission, asserted that “there is no evidence that the needs of the adults or children on site could not be met elsewhere.” However neither she nor the Council was able to identify anywhere where their needs could be met elsewhere either in Brentwood or elsewhere. In particular she did not identify any suitable available accommodation or sites which were not in the Green Belt.

Second even if there was alternative accommodation in another part of Eastern England, the effect of an injunction would be to cause significant hardship to at least some of the Defendants’ children. In particular one of the Defendants has a five year old son who has a Statement of Special Educational Needs. The boy’s assessment states that without someone helping him he will struggle and not be able to cope with school life. He has a language disorder and difficulties in social interaction. Since January 2009, that is to say some 3 months before the Defendants moved onto Plot 3, the boy has been attending Uplands School in Epping which is the first regular schooling that he has had. He is there allocated a specialist teacher for speech and language. His Statement of Special Educational Needs specifies the need for an effective and a mutually agreed system of home-school liaison to be established and, which is of particular significance in this context, to be maintained. It is the view of the school that he is settled in that school, that moving school would not be good for him and that he should not be moved. If an injunction were granted on the basis that his parents could seek alternative accommodation in another part of Eastern England, there would, in my judgment, be significant harm to the boy in the short term and possibly also in the longer term. Based on the evidence of enquires made by his father before moving on the Plot 3 there would be no space for him on the pitches occupied by his sister or father. Given the history of unsuccessful searches for suitable accommodation over a period of 12 -18 months, and the time likely to be taken before other councils covered by the East of England Plan identify additional sites, it is in my judgment unlikely in any event that that Defendant would find a suitable alternative permanent site, if at all, for a considerable period of time. The reality is that if an injunction were granted this Defendant would be forced to choose between taking his son out of Uplands School or staying in the area and seeking to move from one roadside lay-by or car park to another where he and his family would be exposed to danger from passing traffic as well as causing danger to passing traffic and would of course also be acting unlawfully. Indeed this would be likely to happen even if he took his son out of school and moved away from Plot 3.

For the Council Mr Green submitted that the Defendants’ only connections with Brentwood arose as a result of their unlawful occupation of Plot 3 and that any considerations of hardship flowing from such unlawful occupation should be disregarded or significantly discounted for that reason. He relied on the decision of the House of Lords in South Buckinghamshire District Council v Porter 2 [2004] 1WLR 1953. In that case a council appealed against a decision by an inspector granting planning permission to a gipsy who had bought land in a Green Belt area, stationed her mobile home on it without planning permission and, having failed in her first application for planning permission to retain her mobile home on the site,nonetheless continued to occupy the site in breach not only of planning control but also of enforcement notices which were subsequently issued against her. Allowing her appeal against the refusal of a second application the inspector concluded that her status as a gipsy, the lack of an alternative site in the area and her chronic ill health constituted very special circumstances which were sufficient to override Green Belt policies.

One ground on which the Council challenged the inspector’s decision was that he was wrong to ignore the unlawful nature of Mrs Porter’s continuing occupation of the site when considering whether there was sufficient hardship to constitute the very special circumstances required to override Green Belt policies. In a speech with which the other members of the House all agreed, Lord Brown, as he by then was, held that the unlawfulness of a development can in certain circumstances properly militate against the retrospective grant of planning permission. However it is not determinative.

“…It seems to me that wherever the occupier seeks to rely upon the very fact of his continuing use of land it must be material to recognise the unlawfulness (if such it was) of that use as a consideration operating to weaken his claim. Take this very case and assume the Mrs Porter had been relying on her long period of residence to assert that her removal from the site now would cause her particular hardship beyond that resulting from removal after a substantially short period of occupation; hardship, for example, by breaking a number of local ties and friendships. Such a claim would seem to me to raise issues closely analogous to those arising on an Article 8 claim and to require substantially the same approach to the lawfulness or otherwise of the period of occupation as the European Court adopted in the Chapman case 33 EHRR 399.”

“53.

A further point should be made. A development without planning permission is one thing: it is unlawful merely in the sense of being in breach of planning control. Where however as here it has been persisted in for many years despite being enforced against, that is a rather different matter: it is then properly to be characterised as criminal.

54.

I would find it impossible to say in such circumstances that the unlawfulness of Mrs Porter’s prior occupation of the site was incapable of being of material consideration in the case. Whether in fact it was material, however, would depend on the way her hardship claim was advanced. If she was seeking actually to pray in aid her long period of occupation, then to my mind Judge Rich was clearly right to say that the unlawfulness of that occupation would diminish the weight of the case. As it seems to be, however, that really was not the nature or strength of Mrs Porter’s hardship claim. The inspector’s only mention of her occupation of the site ‘for a considerable period of time’ appears in paragraph 7 of his decision (see paragraph 15 above) and its consideration there was not as a possible point in Mrs Porter’s favour but rather as a possible point against her on the basis that it might have cost her status as a gipsy (although in the event no such contention was advanced).

55.

When the inspector came in para 13 of his decision to summarise the very special circumstances of Mrs Porter’s case – her status as a gipsy, the lack of an alternative site in the area, and her chronic ill-health – none of these factors appears to have owed anything to the length of her residence on the site; her case would have been no different even had she occupied the site for an altogether shorter period.” (paragraphs 52-55).

The approach of the European Court in the Chapman case referred to by Lord Brown was set out in paragraph 50 of his speech:

“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community”

Lord Brown’s dicta were in the context of the approach to be adopted by an inspector when considering whether the personal circumstances and hardship of a gipsy constitute the very special circumstances required to out weigh the presumption against granting planning permission for residential occupation of caravans or mobile homes in the Green Belt. The issue with which I am concerned arises in the different context of the court deciding whether the personal circumstances of and potential hardship caused to gipsies in the event of an injunction being ordered is of sufficient significance to outweigh the environmental and public law arguments in favour of granting the injunction.

There is no explicit statement in Lord Brown’s speech as to whether the approach he laid down as appropriate in the former context was of equal application in the latter context. The proposition laid down by the European Court in the passage cited by Lord Brown on its face appears no less and arguably possibly even more applicable to the latter context than the former. An injunction is after all a requirement that the individual leave his or her home. Moreover the risk of encouraging illegal action to the detriment of the protection of the environmental rights of other people in the community is one which it is easy to see might follow from anything other than a very cautious approach to granting protection to those who in conscious defiance of the prohibitions of the law establish a home on an environmentally protected site. If no account could be taken by the Court of the self-inflicted or artificially created nature of hardship relied on as a ground for resisting an injunction, the law, the courts, and ultimately society might become powerless to protect the integrity of the environment against the cynical manipulation of people who were prepared to occupy Green Belt land by stealth so as to present the authorities with a fait accompli. Indeed that is what the Council’s says has happened on this occasion.

However it is, in my view, clear from Lord Brown’s speech that the unlawful nature of an occupation of land is not a complete bar to the Courts holding that on the facts of a particular case there is sufficient hardship to outweigh the arguments in favour of granting an injunction. Indeed such a proposition would be inconsistent, in my view, with the decision of the House in the first Porter case referred to earlier in this judgment. The exercise of weighing in the balance hardship on the one side and the importance of upholding planning and protecting the environment on the other only arises in a case of an actual or apprehended unlawful occupation or user of land. Were the fact of the illegality to operate as a complete bar to the court entertaining submissions based on hardship there would be no need for the balancing exercise which the House of Lords held the court is required to undertake .

Even where the nature of the hardship flows from the unlawful user or occupation of the land, while that fact goes to diminish the weight to be attached to that aspect of hardship, I do not read Lord Brown’s speech as precluding the court altogether from attaching some weight to it and putting it in the balance. There is a further consideration. Where the effect of granting an injunction would be to cause hardship to a third party who has not been guilty of or responsible for the unlawful occupation or user of land, in my judgment there is nothing in Lord Brown’s speech to prevent the court from attaching to such hardship whatever weight it considers appropriate in the circumstances without having to give it diminished weight by reason of the illegality. In my view any hardship caused to a child of a gipsy against whom an injunction is sought and whose occupation of the land is unlawful, even deliberately unlawful, should be accorded no less weight than it otherwise would be on its merits by reason only of the illegality or even deliberate illegality of the conduct of its parent. I recognise that in practice this proposition might in some cases undermine the Chapman principle but it does not seem to me as a matter of logic or justice inconsistent either with it or with anything said by Lord Brown.

As it happens, on the facts of this case, there is nothing either in Lord Brown’s speech or the decision of the European Court in Chapman which would require me to accord less weight to the hardship that would in my view be caused to the child with special educational needs if his parents were required by an injunction to leave Plot 3 than I would otherwise be inclined to attach to it by reason of the illegality of his parents’ unlawful occupation of the site. That is because the hardship would consist of being forced to move school and be deprived of all the benefits of continuity including the benefit of having the individual attention of the same teacher who has been allocated to him since January. That is a benefit which does not derive from or depend on the unlawful occupation of Plot 3 by his parents. The boy was attending the school from January 2009 some 3 months before they moved onto to Plot 3. However even were that not the case, and even if he had only started attending the school after his parents’ unlawful occupation of Plot 3, in my view I would have been entitled and indeed bound to accord such hardship as on the evidence would have been caused to him by being forced to move school no less weight than it otherwise deserved merely because of the unlawful nature of his parents’ conduct. He is in no way responsible for that conduct and for the court to seek to avoid that hardship would not be to reward the illegal conduct.

As already mentioned, there is another Defendant who has a daughter who, as a result of all the moving he had to do, attended 10-12 schools in the 18 months before they moved onto Plot 3. Each time she started going to a new school she had to begin at the beginning and was therefore behind. He had been advised that she needed a speech therapist. In his witness statement he stated that she has now started going to Blackmore School in the village where she is very happy and started to make friends as well as being referred through the school for speech therapy. In oral testimony he said that if an injunction is granted he would not be prepared to move away from the area since that would mean taking his daughter out of the school. Accordingly he would pull his caravan up alongside the road unlawfully in order to keep his daughter at school. Based on past experience this would involve being moved on by the police and having to find somewhere else to park by the roadside every two days .

Although he did not explicitly say that his daughter only moved to the school after he moved onto Plot 3, I am prepared to infer that that is the case. It might on that basis be said that the hardship to his daughter is one which flows from his unlawful occupation of the site in that if he had not moved onto the site she would not have began to make friends at the new school and had access to speech therapy. However in my judgment that is an artificial way of describing the hardship. The reality is that the hardship consists of having parents who previously led a peripatetic lifestyle which prevented her from settling down in any one school and being in a position where she needed but did not have the benefits of continuity flowing from remaining in one school. That is a hardship which pre-existed her parents’ unlawful occupation of Plot 3 and which would be avoided if they were not required by an injunction to leave Plot 3. Even if I am wrong in that analysis, in my judgment, for the reasons already given, since she is in no way responsible for the unlawful nature of her parent’s conduct, the hardship to her falls to be considered without reference to the illegality of that conduct.

This raises a third matter relied on by the Defendants. The Defendant whose daughter has started at the local school said in oral testimony that in the event of an injunction being granted he would remain in the area so as to avoid having to take his daughter out of the school. He did not know where he could go since there is no alternative accommodation available in the area. As a result the likelihood was that he would park his caravan on the village green. To like effect was the testimony of the Defendant whose wife gave birth shortly after the Defendants moved onto Plot 3. He also said that he would stay around the village in a car park or on the playing field so as to enable his baby to be visited by the midwife. There was before the court a doctor’s letter stating that his wife was suffering stress and depression in part associated with anxiety over the possibility of eviction. A third Defendant with a three year old and a one year old had been looking for a permanent base since the birth of the elder child. The women in charge of the nursery school which the three year old has attended since the Defendants moved onto Plot 3 has said that he finds it difficult to mix with other children because he has attended five different nurseries in a short period of time. He said that if an injunction were granted he could not return to a nomadic life and would park his caravan in a local car park on the village green so as to enable his son to remain at the nursery.

The Defendant whose son is at Uplands School with the speech therapist also said that in the event of an injunction he would have to find a lay-by or a car park to park his caravan since the Council had suggested nowhere else for them to go and he had nowhere else to go. The Defendant who believes that his wife’s heart condition is made worse by the uncertainty of having to move from place to place said that in the event of an injunction he would have to stay in car parks or lay-bys thereby reverting to breaking the law. Indeed the reality is that since none of the Defendants has anywhere to go, and in particular the site at Tylers Cross ,even if available, would not be suitable because of the risk of violence, it is likely that they would be forced to expose themselves and their children to the dangers inherent in resorting to unlawful and peripatetic road side parking.

In short the effect of an injunction would in my view be to cause significant hardship not only to the Defendants but also to members of their families and in particular to their children.

A further matter relied on by the Defendants is the submission that they have a realistic prospect of success in their appeal against the refusal by the Council of their retrospective application for planning permission. If that submission is well founded, they say, a number of consequences flow. First it suggests that the application for an injunction is premature. It is a factor to weigh in the scales in their favour, particularly in the context of hardship. If they ultimately succeed on their appeal the disruption and other disadvantages that would flow for them and in particular their families and children from having to move out of Plot 3 would have been avoidable and unnecessary and arguably exacerbated by the yet further disruption which would follow a move back onto Plot 3 after a successful appeal. Alternatively even if this factor is not sufficient in itself or taken together with the other matters relied on by them to persuade the court not to grant an injunction, it should be sufficient to justify either the application being adjourned until the outcome of the appeal is known or the suspension of any injunction until and unless the appeal fails.

In considering this issue it is important to remind myself of the context in which it arises and the manner in which it must be addressed. It is convenient first to state what the court is not permitted to do. As appears from paragraph 100 of the speech of Lord Scott in the first Porter case the court could not properly refuse an injunction simply on the ground that it disagreed with the planning decisions that have already been taken. Where the planning situation is clear and apparently final the court has no alternative but to consider the injunction application without regard to the merits of the planning decisions already taken. As appears from paragraph 30 of Lord Bingham of Cornhill’s speech it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or that a local authority should have had different spending priorities.

However as also appears from paragraph 100 of Lord Scott’s speech if the court thinks that there is a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed the court can adjourn the injunction application until the planning situation has become clarified. In South Buckinghamshire District Council v Smith [2006] EWHC 281 (QB) David Clarke J interpreted the judgment in Porter as entitling the court, in a case where it has found that there is a real prospect of a successful appeal, to grant an injunction but suspend its operation until the determination of an application for planning permission including the determination of any necessary appeal against refusal by the council.

In my judgment it would be consistent not only with the speech of Lord Scott but also with that of Lord Bingham of Cornhill in a case where the court concludes that there is a real prospect of a successful appeal against the refusal of planning permission to take that conclusion into account in deciding whether it is proportionate to exercise the discretion to grant an injunction at that stage. In such a case if the court were to conclude that the grant of an injunction would be disproportionate at that stage, there would be nothing to stop the local planning authority from making a renewed application for an injunction under section 187 B if and when the appeal failed. By definition once an appeal failed, the circumstances would have changed. In my view there is no reason in principle why the court should not proceed in that way rather than by adjourning the existing application. Depending on the facts of the case, there might be practical advantages in adopting that course. Thus for example if the appeal failed there might be a saving in costs in avoiding the need for an adjourned hearing for the purpose of finally disposing of the original application. Moreover in my view the availability of that course to the court follows from the speech of Lord Bingham who said:

“Nor need the court refuse to consider (PACE Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show.” (Paragraph 30).

Lord Bingham did not there limit the context in which the court is entitled to consider the possibility of a successful appeal to the question whether the application for an injunction should be adjourned or an injunction be suspended.

In South Cambridgeshire District Council v Price [2008] EWHC 1234 (Admin) the Defendants submitted that they had a real chance of success in an appeal against dismissal of their planning application and that accordingly they should not be forced to leave the site while the appeal was pending. They submitted that that objective could be met either by refusing to grant the injunction or by adjourning the application pending the outcome of the appeal. Plender J concluded that the Defendants had a real prospect of success on their appeal and his conclusion was in the following terms:

“The upshot is that in my view it would be disproportionate to grant an injunction in this case while there remains a real prospect that an appeal against an enforcement notice or a fresh application by the respondents for the requisite planning permission might succeed. There is such a prospect in the case of the application for temporary planning permission which, I am now informed, is to be the subject of an enquiry that is likely to be fixed for 8 July 2008. It would be disproportionate to grant an injunction at this stage, the effect of which would be to require the respondents to leave the site in the absence of any alternative site provision. …” (paragraph 43).

Although the form of order made by Plender J does not appear from the report of that case, and the language used is not wholly free from doubt, it appears that he declined to grant an injunction rather than that he adjourned the application.

Paragraph 3.1 of Planning Policy Guidance 2: Green Belts states that there is a general presumption against inappropriate development within the Green Belts. Paragraphs 3.2 states that inappropriate development is by definition harmful to the Green Belt. It provides that very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.

Circular 01/2006 states at paragraph 49 that new gipsy and traveller sites in the Green Belt are normally inappropriate development. The named Defendants thus accept that their use of Plot 3 as a site for residential use and location of caravans is inappropriate development. It is their case that there are very special circumstances which justify that inappropriate development because the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations. That case was rejected by the Council and is at the core of the appeal against the refusal by the Council of their planning application.

On this issue there was a divergence of opinion between Mr Green for the Defendants and Mr Boyton a principal planning policy officer employed by the Council and Ms Mathews. In his witness statement Mr Green expressed the view based on a planning assessment prepared by his firm that there is a very good chance that planning consent will be obtained at least on appeal to the Secretary of State if not from the Council either for a permanent site or with temporary time limited permission in accordance with paragraph 45 of Circular 01/2006. In a second witness statement dated June 2009 he stated that his view had been further strengthened by what he had heard at an appeal on which he acted against refusal of planning permission by the Council in respect of a single pitch gipsy site at Clementines Farm, Navestock, Brentwood.

In the light of the evidence he heard at that appeal he stated that he was very confident that a permanent consent is the likely outcome of the planning appeal in this case “as there is a clear, substantial immediate need, there are no suitable, acceptable, affordable alternative sites and the local planning authority’s action represents a clear and continuing failure of policy.” In her witness statement dated 22 May 2009 in response to Mr Green’s first witness statement Ms Mathews stated that she considered it highly unlikely that any sort of permission would be granted to the Defendants either by the Council or on appeal. Ms Mathews was integrally involved in making the recommendation accepted by more senior officials in the Council to refuse the application. In a witness statement dated 19 June 2009 commenting on Mr Green’s second witness statement Mr Boyton did not express a view on the prospects of appeal.

There were a number of detailed points relating to the assessment of need for pitches in Brentwood, the Council’s approach to implementing national and regional planning policy and other matters on which Mr Green on the one hand and two Council witnesses on the other did not agree. Late in the afternoon of the first day of the hearing I was informed that Mr Green who was in court would only be available to give oral testimony that afternoon because of a commitment elsewhere. I was told that there existed obiter dicta in the Court f Appeal discouraging oral testimony on the issue of prospects of appeal. Those dicta were from Tuckey LJ (with which Peter Gibbson LJ agreed) in Wychavon District Council v Rafferty [2006] EWCA Civ 628 at paragraph 66:

“But I should like to make an observation about what we have been told is the practice of some judges in these gipsy cases. This is that witnesses should be called and cross-examined on planning issues to enable the judge to form a better view of the prospects of success of outstanding planning applications or appeals. I do not think this is appropriate. Nothing which was said in the passages cited by the Chancellor from South Bucks District Council v Porter suggests that this is what the court should do. Indeed, Lord Hutton at paragraph 92 and Lord Scott at paragraph 100 suggest that the court should not do so. Such a course is I think unnecessary to enable the court to form a broad view of planning prospects, which it can and should do from the papers in the same way that the court so often has to do about other contested issues in interim injunction proceedings.”

Mr Paget on behalf of the Defendants was anxious to enable Mr Green to elaborate his witness statement evidence and also to cross-examine Mr Boyton and Ms Mathews. Since Mr Green on behalf of the Council raised no objection to this course, and given that any prolonged argument on whether it should be followed was likely to pre-empt any conclusion since Mr Green would not be available after that afternoon, with some misgivings I agreed to that course.

In oral testimony Mr Green said that he had always believed that there was a significant prospect of either temporary or permanent planning permission being granted on appeal. In the light of what he had heard at the Clementines Farm appeal he now thought that those chances were greatly increased because it exposed inadequacies in the Council’s approach to gipsy site provision both in relation to their policy and in practice. He was very confident that planning permission would be granted either permanently or for at least 3 years. Mr Boyton in his oral testimony while not accepting that there is a real prospect of success on appeal was far more muted in the expression of his view than Mr Green has been in the expression of his. In his first answer he said that he certainly could not preclude and would not pre-judge an inspector deciding to grant temporary planning permission but that in the current circumstances it was not necessarily certain that he would do so. He accepted that other appeals had been granted against refusals of planning permission by the Council and accepted that Mr Green could say that there was a real possibility of a successful appeal but was not sure that he would use the term a real prospect of success as distinct from a possibility. In re-examination he suggested that to say that it was not necessarily certain that permission would be granted on appeal was an understatement of his views.

I bear in mind the warning from Lord Hutton in the first Porter case that a judge hearing a section 187 B injunction application “should be alert to ensure that he does not embark on the determination of an issue which would, in reality, involve him in the assessment of planning considerations which lie within the ambit of the functions of the local planning authority.” (paragraph 92). I do not read this warning as intended to be inconsistent with Lord Scott’s implicit view that it is open to the court to form a view as to whether there is a real prospect that an appeal might succeed. It does, however, in my judgment reinforce the importance of the court adopting what Tuckey LJ described as a broad brush approach when forming a view as to whether there is a real prospect that an appeal might succeed.

After the conclusion of the hearing I was sent copies of the two decisions of the inspector who heard the Clemetines Farm appeal. The first decision allowed the appeal and granted planning permission for use of the land for the stationing of caravans for residential purposes as a single gipsy pitch on a permanent basis subject to approval of a site development scheme. The second decision ordered the Council to pay all the appellant’s costs of the appeal against the enforcement notice and part of his costs of the appeal against the refusal of planning permission. The reasons for both decisions were couched in robust terms.

Following receipt of these decisions, I received written submissions from Mr Green and Mr Paget on the implications of the decisions. In broad terms Mr Green submitted that I should treat them with caution in view of differences in the circumstances between the two cases. He also stated that the Council was considering grounds for challenging the inspector’s decision for the purposes of proceedings under 288 and 289 of the Town and Country Planning Act 1990.

Even before receiving the decisions in the Clemetines Farm appeal, I had reached the clear but provisional view that the Defendants have a real prospect of succeeding in their appeal in this case. I was reinforced in that view by some of the content of those decisions. Mindful of Tuckey LJ’s warning, it does not seem to me either necessary or appropriate to address in this judgment all the facts and arguments put forward by the witnesses in evidence and the submissions advanced by Counsel. It is in my view sufficient to record that, although I was by no means satisfied that all Mr Green’s arguments would succeed or even that there is a realistic prospect that they might all succeed, my overall impression is that there is enough of substance in some of the arguments put forward to justify the conclusion that there is a real prospect that the appeal may succeed. I would draw attention in particular to the following highlight points.

The Defendants’ case on very special circumstances is based in large part on the absence of any current alternative available sites for them to move to and the submission that there is little likelihood that there will be enough sites to meet their need in the foreseeable future. Two examples were cited by Mr Green(the witness) of successful appeals for permanent planning permission based on the lack of any alternative available acceptable and affordable sites for gipsies in the relevant district. He asserted that there was a clear local need in Brentwood greater than 15 additional pitches and that by attempting to allocate fewer pitches than that clear local need the Council was ignoring the only currently adopted development plan policy on gipsy sites, H3 from the Regional Special Strategy, which requires local planning authorities to make provision to meet the identified needs of gipsies and travellers living in or resorting to their area (emphasis added). To this the Council responded, in my view with some force, that the requirement on the Council to provide a further 15 additional pitches by 2011 was imposed in the regional policy on gipsy and traveller accommodation and that the Council’s obligation was limited to identifying 15 pitches to satisfy that requirement.

Mr Green placed reliance on paragraph 45 and 46 of circular 1/2006. Paragraph 45 provides that a temporary planning permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gipsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission. Paragraph 46 provides that such circumstances may arise in a case where a local planning authority is preparing its site allocations DPD. In such circumstances local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. To this the Council responded, again in my view with some force, that on the basis of the Council’s preliminary allocation of the 15 additional pitches, it is unlikely that new sites will become available in Brentwood to which the Defendants could realistically go after the Council produces its final allocations DPD within a year or so.

However, in my view, it does not follow from this that there is no realistic prospect of a successful appeal.

In the reasons for the substantive Clementines Farm decision the Inspector made the following findings.

The Inspector gave those factors as they impacted on the appeal site substantial weight in favour of the grant of planning permission for the development in that case. She then addressed the accommodation needs and alternative accommodation options of the appellant, who had been brought up as a Romany gypsy family and lived, travelled and later worked with them. He had been looking for a pitch for himself for many years without success. He had very limited funds and had been outbid on one or two sites. His main priority was to find a site within 30 minutes drive of Harlow which would be suitable for himself and his sons when they stayed with him overnight, which he tried to do a couple of nights a week, when he was not away travelling. His aunt had gifted him the land to live on. If he was denied planning permission he did not know what he would do. He would probably have to return to an itinerant existence, but his girlfriend would probably not let him have his boys to stay in those circumstances.

The inspector then made the following further findings.

“57.Given the widespread and significant shortage of authorised gypsy and traveller sites across the Eastern Region, as discussed above, even if Mr Sykes had unlimited funds and a willingness to move some considerable distance this would not assist him: if there are no available alternative sites (and no party could point to any) then there is little point in making a fruitless search for them. Because of his personal circumstances there is a negligible chance of him being offered a pitch on a Council-owned site, even if one were to become available. He has a reasonable desire to live on a gypsy and traveller caravan site within relatively easy access of his children. Such a site is unlikely to be found in an urban area. While not all of the rural area within 30 minutes drive time of Harlow is in the Green Belt, much of it is, especially the nearer parts, and realistically, almost any alternative, suitable and affordable gypsy and traveller site would be.

58.

The enforcement notice against the use of the appeal site as a residential caravan site has come into effect and therefore the refusal of planning permission would make its continued occupation unlawful. The Council’s announced intentions, in terms of selected sites, for the Gypsy and Traveller DPD gives no realistic likelihood, for the foreseeable future, of providing Mr Sykes with an alternative site by that means. There is no evidence to suggest that any other local planning authority in the eastern region is as advanced in the preparation of its Gypsy and Traveller DPD as Brentwood and thus provision of an alternative site through the development plan process at a local level anywhere else in the Region is likely to be several years off. Furthermore, when such sites are provided there is likely to be severe competition for any that become available on the open market.

59.

As a consequence the effect of a refusal of planning permission in this case would be to make Mr Sykes homeless, with no realistic prospect of an alternative authorised site becoming available to him for the foreseeable future. This would be directly contrary to the Government’s key objective for planning for housing: to ensure that everyone has the opportunity of living in a decent home, (circular 01/06 paragraph 1) and intention 12(i) of the Circular: to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to go to.

60.

While this section has considered the accommodation needs of the appellant, and his alternative accommodation options were the appeal to be dismissed, many of the findings apply equally to any gypsy and traveller currently living on an unauthorised site in Brentwood, or on an authorised site subject to a temporary planning permission due to expire shortly which is not one of the ‘preferred 5’chosen for progression in the DPD. In the light also of the provisions of adopted RSS Policy H3, and the consequences for all of the individuals involved of the approach being taken by Council I give these factors significant weight in favour of this appeal, and not only in terms of Mr Sykes personal situation.” (emphasis added)

Finally the inspector addressed the question whether the harm by reason of inappropriateness and any other harm was clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development in this case. She made the following findings.

“65.

PPG2 requires me to give substantial weight to the harm by reason of inappropriateness when considering any case of inappropriate development in the Green Belt. In this case it is also necessary to add some limited weight to the harm to openness arising from both aspects of the development, and some additional weight to the harm arising to the local area in terms of adding to what is a relatively high concentration of gypsy and traveller sites and the pressure that is putting on the local community and infrastructure. I find no separate material ‘other harm’ to the character and appearance of the area.

66.

In terms of the relevant other considerations, the development complies with Local Plan Policy CP1, adopted RSS Policy H3, and emerging Policy H4 and the provisions of Circular 01/06, as set out above. I give the broad compliance with development plan and national policy substantial weight. I also give the regional and local shortage of gypsy and traveller sites, the acknowledged urgent need for additional sites and the failure of the Council to include provision for a significant element of local need within the emerging DPD substantial weight. I also give additional significant weight to the absence of any available, suitable and affordable alternative gypsy and traveller site and the consequences of this for Mr Sykes, or any other gypsy and traveller living on a site in Brentwood which does not already have a permanent planning permission or has been selected as one of the five ‘chosen’ sites for the DPD. Realistically any alternative gypsy and traveller site in the part of Essex will also be in the Green Belt. Taking all these other considerations together, and without going on to consider the detailed personal circumstancesof Mr Sykes, I find that they clearly outweigh the harm by reason of inappropriateness, and any other harm as set out above. I have no hesitation in finding that the very special circumstances necessary to justify inappropriate development in the Green Belt exist in this case.

67.

In undertaking my duties under Article 8 of the Human Rights Act, I find that the significant interference to Mr Sykes’ rights which would occur were the appeals to be dismissed, or granted on a temporary basis only, would be disproportionate to any, and in this case very limited, public benefit arising from such a decision.” (emphasis added)

While I accept that there are some factual differences between the two cases, both in relation to the nature of the site and the specific personal circumstances of the appellants, it is striking that the Inspector stated that her emphatic conclusions in respect of the harm by reason of inappropriateness being outweighed by other considerations and her finding of very special circumstances were reached without reference to the detailed personal circumstances of the appellant in her case and that she emphasised that many of her findings on accommodation needs apply equally to “any gipsy and traveller currently living on an unauthorised site in Brentwood …..which is not one of the preferred 5 chosen for progression in the DPD.”

In her reasons for the decision on costs the inspector stated that the Council would have been well aware that at least five appeals concerning gipsy and traveller sites in the Green Belt in Brentwood in the last three years have been allowed, with planning permission being granted on a temporary basis (in light of the advice in paragraphs 45 and 46 of Circular 01/2006) because, in large part ,of the level of need for and shortage of alternative sites, the consequences for the individuals of dismissing the appeals in these circumstances and the expectation that the Council’s emerging DPD would make provision for additional sites to meet local needs on a planned basis within an identifiable time frame.

In my judgment the decisions and some of the reasons for them in the Clementines Farm appeal support the conclusion that there is a real prospect that the Defendants’ appeal may succeed. That is a conclusion which I would have reached even without sight of those decisions. I found Mr Green to be a very experienced, well informed and balanced witness and his views on the relative weight likely to be attached by an inspector to the personal circumstances of the defendants, and the lack of alternative accommodation on the one hand and the harm to the environment and the inappropriateness of residential development in the Green Belt on the other broadly persuasive.

I have reached the clear conclusion that, in the circumstances as they were presented to the Court, it would not be proportionate to grant an injunction requiring the Defendants to cease their residential use of Plot 3 and return it to agricultural use. In reaching that conclusion I have sought to take into account all the facts and matters set out in the speeches in the first Porter case to which I have referred. Weighing them all in the balance I do not consider that an injunction is justified as matters stand.

I make clear that I have not disregarded the importance in principle of the courts upholding and being seen to uphold the rule of law and in particular planning law. Nor have I disregarded the importance of deterring cynical manipulation or abuse of the system. It is easy to see how the conduct of the Defendants on the Easter weekend may have appeared to the Council as a deliberate attempt to present it with a fait accompli. On one view that is not a wholly unfair characterisation of what occurred.

However it is far from being the whole story. The Defendants are not in my judgment cynical or ruthless people who have set out to further their own ends in complete disregard for or lack of interest in the law. They set out with the best of intentions to comply with planning law and spent many months seeking a suitable site which was likely to get planning permission. They consulted and took advice from local planning officers and spent money on solicitors and planning consultants in an endeavour to find and acquire such a site. They were desperate to find a site where they and their families could settle down both without danger and without breaking the law.

In the event they decided to move onto the site knowing that that it was unlawful to do so without planning permission. Some of them knew that by doing so they were also in breach of an enforcement notice. Most of them knew of the existence of the enforcement notice, but not all of them understood that it applied to them and all of them believed, in my view on reasonable grounds, that they had at least good prospects of obtaining planning permission at least on appeal. They were also heavily influenced by the fact that, to their knowledge, the Council had tolerated the presence of residential mobile homes not only on two neighbouring plots but on the very plot they had bought for several years without taking proceedings to evict the occupiers even though there were enforcement notices outstanding and there had been prosecutions. Some of them had been warned by Mr Green not to move on to the site without planning permission and that if they did the Council might take steps to seek to evict them. However they believed that there was a reasonable prospect that the council might tolerate their presence at least until the outcome of a planning application and/or appeal.

In the event it appears that the decision to move on to the site without planning permission and without telling the Council was taken because the wife of one of the Defendants was expecting a baby in two weeks and the father in law of another was about to have an operation. None of them had any other accommodation or anywhere else to go other than the roadside. None was prepared, even if they had been able to, to return to the site at Tylers Cross because of the risk of violence and danger to them and their families. Although there was undoubtedly knowingly unlawful conduct, it was in my judgment, borne out of desperation and frustration rather than cynicism.

I also take into account the fact that the background does not in my view suggest any or any significant urgency in the removal of the Defendants. That is the case even without regard to the fact that the Defendants have an outstanding appeal against the refusal of planning permission which in my judgment has a real prospect of success. I accept, and indeed cannot, in the light of the decision in the first Porter case, go behind, the conclusion of the Council in its refusal of planning permission that the development causes significant harm to the openness of the Green Belt. I also accept that the Defendants’ development is on a larger scale than the existing developments on Plots 1, 2 and 3. However the inspector who dismissed Mr Udall’s appeal against refusal of planning permission in April 2003 stated that the mobile home, small out buildings and hard surfaces installed by Mr Udall had given the land a domestic appearance and that the change in local character was visible from the road and the wider area and concluded that the development had resulted in a loss of openness and formed a harmful encroachment in the countryside and the inspector on the 2001 appeal described the harm to the Green Belt on Plot 3 as serious. It is impossible to ignore the fact that the Council has tolerated those developments for several years without seeking their removal by applying for an injunction. I have already said that I see no substance at all in the suggestion, which was not advanced with any rigour, that the decision to apply for an injunction constituted unlawful racial discrimination. I also take into account that it is considered by the Council that the development does not harm the amenity of nearby residents or, based on the advice of the Highways Officer, highway safety and thus complies with Local Plan Policies CP1 and T2 in those respects. I further note that in a letter before the court the current occupiers of Plot 1, a Mr and Mrs Aldwin, who appear to have succeeded Mr and Mrs Betts as occupiers of the mobile home on Plot 1, write that after the shock of the Defendants moving onto Plot 3 “they have settled in and are very quiet, clean and tidy and have not been a problem to us.”

It is necessary to seek to weigh in the balance the detriment to the environment and the importance of upholding planning law on the one hand and the hardship likely to be caused to the Defendants and their families on the other. It is relevant to observe in this context that in my view there is little if any evidence to suggest that this balancing exercise was carried out by the Council before it decided to apply for an injunction. That omission itself is to be added to the Defendants’ side of the scales.

In my judgment on the basis of the evidence before the court which I have summarised above that balance does not currently come down in favour of the grant of an injunction.

This is closely linked to the fact that having searched my conscience I cannot say that I would on the basis of the material before me be prepared to contemplate sending the Defendants to prison for contempt of court if I were to grant an injunction and they were subsequently to break it. In reaching that conclusion I take into account their conduct, their motives , the hardship which in my view they and more particularly their families would suffer if they were now to be removed from Plot 3 including but not exclusively by reference to the unavailability of suitable alternative accommodation if an injunction were now to be granted

In reaching my overall conclusion that it would not now be proportionate to grant an injunction I am fortified by my view that the Defendants’ appeal has a real prospect of success. It would in my view be to cause avoidable and unnecessary hardship as well as disruption to order an injunction before the outcome of the appeal is known. If they are successful in the appeal and later allowed to return to Plot 3 their children will have had the continuity of their education unnecessarily interrupted and they will all have been avoidably exposed to the hazards of life parked on roadside lay-bys. However my conclusion that on the present evidence the hardship factor outweighs the countervailing factors does not depend on my view that there is a real prospect of a successful appeal.

In the light of these conclusions I have considered whether the appropriate order to make is to adjourn the application for an injunction until the outcome of the appeal is known or simply to decline make an order for an injunction. On balance in my view the latter is the right and proportionate course. If the Defendants win their appeal there would probably be no useful purpose served in incurring the expense of an adjourned hearing of the application since the outcome would be inevitable. If they lose the appeal the Council could, if so advised, make a renewed application. It by no means follows that it would decide to do so. It would no doubt wish to consider the conclusions reached in this judgment and any change of relevant circumstances. It may be that circumstances will change in the future, either in relation to issues of hardship or in relation to the availability of suitable alternative accommodation, or in relation to environmental damage or in relation to the planning regime or in some other respect in such a way as to lead the Council to the view that the balance between hardship on the one hand and environmental damage and upholding planning law on the other justifies a further application. In that event the Council would not be prevented by the terms of this judgment or my order from making a renewed application. I do not encourage it to do so. That would be a matter for the Council.