King's Lynn & West Norfolk Council v Smith & Anor

On 4 September 2009 Maddison J granted an injunction to the claimant Council in respect of land known as Primrose Farm, Small Lode, Upwell, Wisbech, PE14 9BE (the land) forbidding persons unknown from using the land for the siting of residential mobile homes/caravans and/or using the land or any part of it for residential purposes. The injunction was granted under s 187B of the Town and Country Planning Act 1990. The Council had sought and obtained this order because it feared residential development was likely to take place on the land after 3 men using earth moving machinery were seen working on it. That order was served at 11 pm on 4 September 2009 when two council officers entered the land. No caravans, mobile homes or people were present. Three copies of the order were displayed on site, one on a stake hammered into the ground adjacent to the south access, one within the site and one stapled to the northern access gate post.

On 5 September 2009 the defendants each moved a caravan onto the land and began using them for residential purposes. On 7 September a site visit was conducted by the Council and three touring caravans and a movable home were found on it. The defendants, who were present, were informed of the terms of the order and told that they must vacate the land because they were in breach of it. Subsequent visits on 17 and 24 September revealed that the defendants had not vacated the land and on 24 September committal proceedings were initiated for breaches of the order. By this time further work had been done. Another prefabricated mobile home had been placed on the land along with other domestification including wooden pet enclosures, climbing frames and garden furniture. Thus, contrary to the terms of the order, not only had the defendants entered the land in the first place and put caravans on it but residential usage had increased with these additional structures. The defendants supplied the names of their solicitors to the council officers on 24 September when they were told that a committal hearing was fixed for 9 October 2009.

Between 2 and 12 October 2009, the defendants applied for planning permission for residential use by them of the land. The original application was invalid because no fees were submitted, but the defendants had engaged planning consultants to make application on their behalf and, by 12 October the application had been validated. Furthermore, on 8 October 2009, one day before the committal hearing, the defendants issued an application to vary or discharge the terms of the injunction granted by Maddison J. This is the matter which I have to decide.

On 9 October 2009 the committal application was heard by Tomlinson J. At the hearing the defendants admitted that they had breached the order and that they were in contempt of court and offered an explanation. Ms Smith accepted that she had been aware of the order before she moved onto the land on 5 September but told the court that she had already arranged for her caravan to be delivered there by that time and that she could not return it. She also said that she did not understand that the order prevented her from moving on to the land, although it prevented her from doing any more work. Ms Ingram told the court that she only became aware of the documents constituting the order when she moved on to the land but did not know what they said. She had not understood the terms of the order, being effectively illiterate, and it was only when the council officers explained the order on 7 September that she understood its terms but even then did not understand that she had to move the caravans off.

Tomlinson J found as a fact that on 7 September the officers had given an accurate account of the terms of the order but the defendants maintained before him that they thought they could remain on the land regardless. Tomlinson J found as a fact that, by 17 September, whether or not the defendants had been under any misapprehension prior to this, they knew full well the meaning of the order and its effect. They however remained on the land thereafter, undertaking further development to which I have already referred, prior to the committal hearing.

In their first witness statements filed in respect of the committal proceedings, and their application to vary the terms of the injunction, Ms Smith and Ms Ingram explained that they were the registered owners of the land since Ms Ingram’s uncle had bought it for them before they moved onto it on 5 September. The sum of £30,000 had been paid.

The defendants said that the land had been bought from Mrs Mason who had a chalet type building and two mobile homes on the land and told them that she had a “licence” which would have to be renewed later in the year. They got the impression that they could live on it. Before buying the land they went to the council offices in King’s Lynn to check what Mrs Mason had said. They asked about the land and the person they spoke to got information up on a computer screen. She told them that Mrs Mason had a 1 year permission but there would probably not be a problem in renewing it. They were not told that the permission was personal to Mrs Mason. They were given a copy of it but Ms Smith’s evidence was that she read and wrote only a little and did not understand that the permission would finish when Mrs Mason left the land.

Mr Justice Tomlinson fined each of the defendants £5,000 to be paid by Friday 8 January 2010, warning them that a failure to pay would result in imprisonment.

This evidence from the defendants is hard to credit. When they purchased the land, they did so using a firm of solicitors, as was conceded at the hearing. It was also conceded and it must be inferred that any competent solicitor doing his duty to his clients would have told them of the terms of the planning permission which applied to the land they were purchasing. The permission in question was dated 6 October 2008 and was personal to Mrs Mason, allowing her, until 30 November 2009, to reside in a caravan on the land. The reason it was personal appears in the planning officer’s report which led to the grant of permission, namely that Mrs Mason was involved in agricultural business and that this temporary residence was to assist her in the agricultural venture in which she was engaged. The land was designated agricultural land and a barn stood on it and various applications had previously been made for other agricultural buildings to be erected.

I do not accept that the defendants were unaware of the terms of the planning permission when they purchased the land nor that Ms Smith was unable to understand the copy of the planning permission when handed to her. She and her eldest daughter, aged 13, who was referred to in the evidence as “scholarly”, were responsible for the home schooling of the 3 youngest children. I find that both Ms Smith and Ms Ingram must have had the precise terms of the planning permission explained to them by their solicitor. A chat with the customer information person at the council offices, as opposed to anyone in the planning department, could not have given them any sensible comfort, particularly as a copy of the planning permission was handed to them.

I find also that, when they arrived on the land on 5 September, they must have read and between them, as they would have discussed the matter, understood the injunction which was posted there. That order, in paragraph 1, made it plain that until an express grant of planning permission was given or until the court so ordered, they were forbidden to use any part of the land for the siting of caravans/mobile homes or from using it for residential development, specifically including both the occupation of caravans or mobile homes, the storage of vehicles and caravans and residential paraphernalia.

Whilst Mr Justice Tomlinson was prepared to give the defendants the benefit of the doubt in the context of a contempt application, with the higher burden of proof and found that by 17 September the defendants had no doubt as to the order and its effect, I am clear that they understood clearly what the order meant when Ms Smith and her daughter read the document on arrival on the land, re-inforced by the council officers’ explanation on 7 September. Moreover they understood the purport of this because they were well aware of the planning restriction, as I have already found. It is note-worthy that Ms Ingram was aware of planning issues because that is the reason she gave for her movement from the previous site where she had been residing. Indeed in the Gypsy Community, it is impossible to believe that Ms Smith and Ms Ingram were not alive to planning issues and to court orders issued to enforce them.

I am fortified in the views that I have formed by the ability of the defendants, when faced with a contempt application, to instruct planning consultants to apply for planning permission and solicitors to apply for a variation of the order made against them. Neither Ms Smith nor Ms Ingram, though single mothers with, in the one case, 5 children and the other, 2 children, are “innocents abroad” and plainly have family contacts and others within the Gypsy Communities who know the system well and how to take action, in their own interests, in relation to it.

Both of the defendants therefore, I find, acted in flagrant disregard of the planning restrictions of which they were aware and in flagrant breach of this court’s order.

The defendants submit that it would be disproportionate to evict their families from the land, given their personal circumstances, the fact that they have no where else where they can lawfully station their caravans and the fact that they have made a planning application which has at least a reasonable chance of success and which, if granted, would enable them to remain living on the site.

The well traversed area of law with which this application is concerned has, as its starting point, for present purposes, the principles laid down in South Bucks DC v Porter [2003] 2 AC 558 by the House of Lords as applied in such cases as South Cambridgeshire DC v Gammell [2005] EWCA Civ 1429.

In summarising the effect of the House of Lords decision, the Court of Appeal said:

“The Court of Appeal allowed their appeals and the planning authorities appealed to the House of Lords. All the appeals were dismissed. The House of Lords held that section 187B of the 1990 Act conferred on the court an original and discretionary, not a supervisory, jurisdiction, to be exercised with due regard to the purpose for which it was conferred, to restrain actual or threatened breaches of planning control; that it was inherent in the injunctive remedy that its grant depended on the court’s judgment of all the circumstances of the case; that, although the court would not examine matters of planning policy and judgment which lay within the exclusive purview of the authorities responsible for administering the planning regime, the court was not obliged to grant relief because a planning authority considered it necessary or expedient to restrain a planning breach; that the court would have regard to all, including the personal, circumstances of the case, and, since section 6 of the 1998 Act required the court to act compatibly with a Convention right (as so defined), and having regard to the right guaranteed in article 8, the court would only grant an injunction where it was just and proportionate to do so; and that, accordingly, the planning authorities’ application should be determined on that basis.”

In Davis v Tonbridge and Malling Borough Council [2004] EWCA Civ 194, the effect of the House of Lords decision was expressed in this way:

“The effect of the various speeches – set out most comprehensively in the leading speech of Lord Bingham of Cornhill, was as follows: 1) section 187B confers on the courts an original and discretionary, not a supervisory, jurisdiction, so that a defendant seeking to resist injunctive relief is not restricted to judicial review grounds; 2) it is questionable whether Article 8 adds anything to the existing equitable duty of a court in the exercise of its discretion under section 187B; 3) the jurisdiction is to be exercised with due regard to the purpose for which was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by a defendant of the relevant planning controls and procedures may weigh heavily in favour of injunctive relief; 4) however, it is inherent in the injunctive remedy that its grant depends on a court’s judgment of all the circumstances of the case; 5) although a court would not examine matters of planning policy and judgment, since those lay within the exclusive purview of the responsible local planning authority, it will consider whether and the extent to which, the local planning authority has taken account of the personal circumstances of the defendant and any hardship that injunctive relief might cause, and it is not obliged to grant relief simply because a planning authority considered it necessary or expedient to restrain a planning breach; 6) having had regard to all the circumstances of the case, the court will only grant an injunction where it is just and proportionate to do so, taking account, inter alia, of the rights of the person or persons against whom injunctive relief is sought, and of whether it is relief with which that person or persons can and reasonably ought to comply.

Thus Lord Bingham’s reasoning, and that of the other Law Lords, in endorsing Simon Brown LJ’s analysis of the balance to be sought between public and private interest in such cases, was to recognise two stages before, or certainly by the time, injunctive relief is sought: first, to look at the planning merits of the matter, and, in doing so, to accord respect to the local planning authority’s conclusions; and second to consider for itself, in the light of the planning merits and any other circumstances, in particular, those of the defendant, whether to grant injunctive relief.”

The impact of a breach of a court order is however considerable as is shown by the decision of the Court of Appeal in Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709. Issues arise in the context of Article 8 of the European Convention of Human Rights and the decision in Chapman v UK [2001] 33 EHRR 18 and the particular position of gypsies. The personal circumstances of the individual defendants fall to be taken into account in a balancing exercise which the court (which must under Article 6 of the Convention, apply Convention principles) must carry out when deciding whether the removal of gypsy mobile homes from a site unlawfully occupied is proportionate to the legitimate object of upholding environmental prohibition and planning controls.

In R (Daly) v SSHD [2001] 2 WLR 1622, Lord Steyn said:-

“The contours of the principle of the proportionality are familiar…..the Privy Council adopted a three stage test.

.. In determining whether a limitation (by an act, rule or decision) is arbitrary or excessive, the court should ask itself whether (1) the legislative object is sufficiently important to justify limiting a fundamental right; (2) the measures designed to meet the legislative objective are rationally connected to it and (3) the means used to impair the rights of freedom are no more than is necessary to accomplish the objective.”

The balancing exercise which the court may then embark on takes into account all material factors and I was referred by the defendants to the decision of Stadlen J in Brentwood Borough Council v Ball [2009] EWHC 2433 at paragraph 45 where he set out a series of factors to which regard should be had.

There are four main areas put forward by the parties for me to take into account in exercising my discretion whether to continue, vary or discharge the injunction. The first is the effect of the defendants’ conduct both in breaching the planning controls and the court order and the impact of the decisions in Mid Bedfordshire District Council v Brown (ibid), South Cambridge District Council v Gammell (ibid) and Wychavon District Council v Rafferty [2006] EWCA Civ 628: secondly the availability of alternative accommodation for the defendants if they should be removed from the land: thirdly the prospects of success of the defendants in a planning application to reside on the land: and fourthly the personal circumstances of the defendants with particular regard to Article 8 of the Convention.

In Mid Bedfordshire District Council v Brown (ibid), the claimant council obtained an interim injunction restraining the use of agricultural land for residential purposes. The land was in an area of great landscape beauty within the green belt. In breach of the injunction the defendants moved their caravans onto the land and subsequently submitted an application for planning permission for a change of use to a gypsy residential site. A final injunction was granted but suspended pending the determination of the planning application on the ground that the interest of the safety and stability of the young children on the site overrode the objective of safeguarding the environment and planning controls. Mummery LJ, in giving the judgment of the court, referred at paragraph 7 to the relevant legal principles settled by the decision of the House of Lords in Porter (ibid) as followed and applied in two later decisions of the Court of Appeal. In paragraph 8 he referred to the authorities as containing an informative debate on a variety of competing interests and discretionary considerations which the court should take into account, including the personal circumstances of the defendants and the hardship likely to be inflicted on them as a result of an injunction enforcing the planning controls, by requiring them to move on.

In the concluding paragraphs of the judgment, reference was made to the first instant judge’s failure to take proper account of the vital role of the court in upholding the important principle that orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated the correct way in which to challenge the injunction, since it contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify it. The proper course for the defendants to take if they wished to challenge the order was to apply to the court to discharge or vary it and, if that failed, to seek to appeal. Instead of attempting to follow the correct procedure, the defendants had decided to occupy the land as if no court order had never been made. In so doing they cocked a snook at the court and did so in order to steal a march on the council to achieve the very state of affairs which the order was designed to prevent. It was pointed out also that no explanation or apology for the breaches of the court order was offered to the judge or to the Court of Appeal.

Paragraphs 26 and 27 of the judgment read as follows:-

“26.

The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was a defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.

27.

The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour a suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control.”

The court also added that the defendants would have attracted more sympathy from the court if they had followed the proper procedures for obtaining planning permission and awaiting the outcome of a planning application instead of taking the law into their own hands, flouting orders of the court and asking the court to suspend the injunction in order to relieve them of the consequences of their unlawful conduct.

The parallels with the present situation are obvious though the land is not green belt. Whilst it is true to say that the defendants raised issues about their understanding of the court order, the fact remains that the claimant council had, with commendable speed and foresight, obtained an injunction before the defendants entered onto the land and placed their caravan/mobile homes there. I have already found that the defendants knew both that they were acting in breach of planning conditions when doing so and, on arrival on the land, understood the terms of the court order as preventing the course of action upon which they were then embarked. They persisted nonetheless. I have found also that they understood fully the explanation given to them 2 days later by council officials and Tomlinson J has already found, when looking at matters from the criminal standard of proof, that by 17 September any possibility of misunderstanding had evaporated. Whilst apologies were offered to the court at the committal hearing, those apologies rang hollow in circumstances where the breaches had continued and no effort had been made to comply with the order. Instead, an application had been made for planning permission in the hope that a court might suspend its order pending determination of that and, at the last moment, before the committal hearing, an application was launched to vary the court order. This course of conduct savours of an attempt to manipulate the system.

In my judgment therefore the most important factor in exercising the discretion that I have, is this misconduct of the defendants, seen in the light of the trenchant observations of the Court of Appeal in Mid Bedfordshire.

On the first day of the hearing, when I suggested to counsel for the defendants that the two most critical factors here appeared to be the defendants’ conduct and the issue of alternative accommodation, the defendants sought an adjournment in order to investigate the evidence of the claimants. That evidence had, in accordance with the directions of the court, been served on 16 October, some 5 days before the hearing. I refused the adjournment on the basis that the availability of alternative accommodation was always known to be a significant issue with which the court would be concerned in a matter of this kind, that prior to 16 October the defendants had every opportunity to investigate this and that a further period of a few days was available to them even after service of Mr Ashworth’s evidence for the claimant.

The key part of Mr Ashworth’s evidence on this aspect appeared at paragraph 5.2 of his statement. There he refers to the Regional Spatial Strategies single issue review, approved in July 2009, which required through a Development Plan Document, a total of 146 pitches to be provided for gypsies and travellers within the Borough of King’s Lynn and West Norfolk up to 2011. His evidence was that the Borough Council had undertaken an exercise where each site across the Borough had been visited and surveyed to ascertain the types and amount of accommodation and that a total of 167 caravans/mobile homes were identified as being in situ across the Borough. Each pitch is considered to be equivalent to 1.6 caravans for the purpose of the RSS calculations. At the time of making his statement, there were 151.8 pitches although not all had planning permission. There were 137.45 lawful pitches, whilst the total of permitted/lawful and tolerated pitches was 144.95 and, if unauthorised pitches were included, the total was 151.8. In these circumstances the council was unlikely to need to allocate further pitches for gypsies and travellers but would be working with the Registered Social Landlords and the Gypsy & Traveller community to bring forward applications on suitable sites, because some of those currently used were unauthorised.

His evidence also was that there were a number of pitches available in the area. These were set out in a table showing that there were a total of 14 unoccupied plots or caravans on 5 different sites, 4 of which appeared to be in close proximity to one another (and could easily be investigated). He said that “in essence, if a search had been carried out for alternative sites in the surrounding areas, then it would have been evident that there were alternatives available”.

I am satisfied, on the evidence, that although none of these sites can be said, necessarily to be ideally suitable for the defendants, because of issues of affordability and the like, overall, the claimant council is right in concluding that there is no need for further gypsy and traveller sites, regardless of the general under provision nationwide. Whilst the Local Development Framework Core Strategy is not yet at submission stage, the format of the Gypsy & Traveller policy has been agreed with members of the Local Development Framework Task Group and will be put forward to be agreed as policy by both Cabinet and Full Council. The issue of traveller accommodation is being considered in detail and there is therefore no desperate need for “ad hoc” planning permissions and no “unmet needs”. The council is therefore able to work within its existing policies so that there is no need to grant permanent or temporary planning permission for additional sites.

So far as the immediate needs of the defendants are concerned, the council have undertaken to treat Ms Ingram and Ms Smith and their families as priority housing needs and, as Codona v Mid Bedfordshire District Council [2004] EWCA Civ 925 shows, if there are no caravan sites available after careful enquiry, a council is not in breach of its duty under the Housing Act if it offers, as a short term measure, bed and breakfast accommodation to those whose background and culture makes them averse to conventional housing. Although this is a last resort for a council and could only be offered as a short term measure so that, if it went on too long before suitable long term accommodation was provided, there could be a breach, that is not the position which prevails here for the reasons I have already given. Because of the availability of sites, if the claimants had been approached by the defendants, they would have been pointed in the right direction and investigations could have been carried out in relation to the various empty plots and caravans.

I find therefore that issues of alternative accommodation do not militate against the removal of the defendants from the land.

It is accepted by the defendants, on the basis of Mr Ashworth’s evidence, that they do not have realistic prospects of success in a planning application to be determined by the claimants, for the reasons he gives. It is however contended that there are realistic prospects of success on appeal. It is acknowledged that the result of such an appeal would not be known for 6-9 months. It is clear to me that, applying ordinary planning considerations, the defendants do not have a realistic prospect of success, whether on an initial planning application or on appeal. For the reasons already given, there is no need to create additional traveller sites. Furthermore, there are site specific issues which make the land unsuitable.

There is an extensive planning history associated with the site. The land is designated for agricultural use and, in June 2005, permission was granted for the retention and completion of a plant room, feed store and cattle building and temporary standing of a mobile home and ancillary buildings for residential use on a temporary basis until 30 June 2008. This permission was personal to Mrs Mason and her immediate dependents. Permission was withdrawn for these matters in August and September 2008 whilst in October 2008 once again approval was given for the retention of the feed store, cattle building and plant room. On 28 November 2008 temporary permission was again given to Mrs Mason for the temporary standing of an existing residential caravan on the land expiring on 30 November 2009, such permission being limited to her personally. The planning officer’s report which led to the grant of this temporary personal permission made it plain that the application related to the continued temporary standing of the mobile home for occupation by Mrs Mason and her immediate family in connection with the ongoing farming operations on the site. It was therefore very much tied in with the creation of a cattle rearing farm and other agricultural related activities. Approval for the temporary residence was recommended following an application for a new dwelling on the site being withdrawn in September 2008 on the basis of an appraisal of the agricultural business and the “exceptional circumstances” obtaining because of the hold up in profits following a serious illness affecting the cattle and the inability to acquire suitable other accommodation nearby. Mrs Mason had a firm intention and ability to develop the enterprise, taking into account the development of the site, specifically the investment in farm buildings constructed and the permission which she had to construct a further barn. It was considered that a 1 year extension to the temporary permission for the mobile home would give Mrs Mason every opportunity to establish a viable business which could then be reassessed for consideration of an application for the construction of a permanent dwelling on the site.

It is plain therefore that the local authority and a planning inspector would start from the basis that this was designated agricultural land in an area where there was adequate provision for gypsies and travellers on other sites, and there was no necessary reason to allow a change of use.

Furthermore the land was in zone 3 on the Borough Council’s Strategic Flood Risk Assessment maps. The National Planning Policy Statement 25, which deals with development and flood risk, makes it plain that “the highly vulnerable uses in table D.2 should not be permitted in such a zone”. Table D.2 includes caravans, mobile homes and park homes intended for permanent residential use in the “highly vulnerable” category. Furthermore, the Environment Agency has, in a letter dated 16 October 2009 objected to the defendants’ planning application because the proposed development falls into a flood risk vulnerability category which is inappropriate for flood zone 3. Under the Planning Policy Statement, “if the Environment Agency objects to an application for major development” on flood risk grounds [and the land does constitute a major development being 2 hectares in area] unless the objection is withdrawn after discussions between the parties, the only way in which the matter can proceed, if the local planning authority is minded to approve the application for major development, is for the Secretary of State to be notified and for him to consider whether it would be appropriate to call the matter in for determination. In this case Mr Ashworth makes it plain that the planning authority would be most unlikely to consider approval so that this eventuality which would give rise, in all probability, to a public enquiry, and a long drawn out process, would not arise.

Although Dr Murdoch, the planning expert consulted by the defendants referred to an inspector’s decision on an appeal dated 8 October 2009 where a planning inspector had been prepared to grant permission for a mobile home and caravan, on an appeal against an enforcement notice, where the development site lay within flood zone 3, that decision does run contrary to the National Planning Policy Statement 25. A different view was taken from the Environment Agency in the absence of the required Flood Risk Assessment on the basis that the predicted 1 in 100 year flood level would be 400 mm below the floor level of the mobile home and this would be lessened by only 36 mm if climate change were taken into account. The appeal site was on the western outer fringe of the potential flood area and there would be minimal velocity in any flood water and little risk to the stability of the mobile home bearing in mind the height of the floor level. He found the risk of flooding was not so severe as to result in a strong conflict with the local planning policy. Such a recent decision is, of course, open to challenge but it is not known whether such a challenge will take place. Such a grant is not, of course, a precedent but the claimants relied upon it as an example of a situation where a planning inspector might override the flood zone objections of the local authority and the Environment Agency. In the present case, no reasoning has been put forward of the kind which the inspector accepted which could militate against the application of the National Planning Policy Statement and I can see no basis upon which an inspector could reach a similar conclusion to that in the appeal to which I have referred.

There is additionally, a question of landscape impact because of the amount of hard standing already laid down and proposed in the planning application. According to Mr Ashworth it is such that the intrusion into the countryside exacerbates landscape impact to a level which is likely to warrant an objection to the grant of planning permission. No application had been made for a lesser amount but it is possible for the local authority to grant permission with a condition as to the amount of hard standing present, so I do not see this as an insuperable problem for the grant of planning permission.

Given the factors to which I have referred however I see no realistic prospect of the applicants obtaining planning permission on their application, whether from the local authority or on appeal.

Ms Smith is a 32 year old Romany single mother with 5 children aged between 14 and 1 and expecting a sixth child in 7-8 weeks time. Her blood group is Rhesus Negative, known as D Negative, which means that she needs injections at various points during her pregnancy because of the risk that the baby’s blood grouping and her blood grouping may present problems. The youngest 2 children now have places at the local primary school which they have been attending for about 2 weeks. The 3 elder children are “home schooled” with home schooling packs and computers. The eldest daughter, aged 14 assists her siblings. The circumstances in which Ms Smith and her children moved to the site are set out in her first statement. Before moving there, she lived on a plot belonging to her uncle at a site known as Five Acres which he owned. He allowed her to live there but earlier this year told her that she had to leave as the number of caravans that she had there exceeded those that he was allowed to have on his plot. Following his request to her to leave, she started looking for land and did so with Ms Ingram whose uncle had offered to put up money to buy land for them if they could find somewhere he could afford. It was in those circumstances that they heard about the land and saw Mrs Mason who explained that she had a “licence” on the land which would need to be renewed in October or November 2009. They thereafter instructed solicitors in the purchase.

Ms Ingram is aged 31 and is a Romany single mother with 2 children aged 6 and 1. From June 2008 onwards she stationed her caravan in the garden of her mother’s house near Wisbech who, as time went on, became increasingly anxious that she should leave. She started to look for land in 2009 and an uncle of hers put up the money to buy the land for herself and Ms Smith. She eventually had to move quickly when her mother received a letter from the council saying that she was using the house as a caravan site and must stop. Her mother told her that she had to leave. Ms Ingram says that she can neither read nor write but re-iterated what Ms Smith said about seeing Mrs Mason and what they were told about her “licence” to stay on the land which needed renewal later in the year. One of the factors in the decision to buy the land was that her son Steven could remain in the same school where he is settled and happy and a further move could unsettle him. His attendance was below average but is improving recently and his confidence is growing. Ms Ingram has deep vein thrombosis.

Both Ms Ingram and Ms Smith made it clear in their statements that they are gypsies who are averse to living in conventional bricks and mortar and would find it difficult and distressing, should it become necessary to do so. Mr Willers, on their behalves, submits that stability in accommodation, educational and health facilities is important and, relying on Chapman (ibid) says that it would be disproportionate to evict them from their current accommodation.

In that case, the European Court recognised that there was a wide margin of appreciation accorded to the authorities in exercising their discretion involving a multitude of local factors when setting and implementing planning policies. The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle, both in the relevant regulatory planning framework and in arriving at decisions in particular cases. There is thus a positive obligation imposed on the contracting states by virtue of Article 8 to facility the gypsy way of life.

Nonetheless, as set out in paragraphs 102-104, where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interests between the right of the individual under Article 8 to respect for his or her home and the right of others in the community to environmental protection as set out in planning controls. “When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, 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.” Reference is then made to the issue of alternative accommodation, stating that the more suitable the alternative accommodation is, the less serious is the interference with the Article 8 right. The evaluation of the suitability of alternative accommodation, balancing the particular needs of the person concerned and the rights of the local community to environmental protection is a task where a wide margin of appreciation is given.

Whilst there are personal circumstances which avail the defendants in their arguments, as counsel for the claimant points out, the circumstances invoked here are towards the lower end of the scale. The children do not have special needs and there is no necessity for those at school to move since the county council will, if necessary, provide transport. Moreover 2 of the children only started at the local school 2 weeks ago and the argument is in any event weakened by the fact that they have endured several moves before. Home schooling of the children remains unaffected. In truth there is very little which is different here from anyone else who is adversely affected by planning control requirements.

This is a case where the application of the criteria set out in Porter results in a continuation of the injunction. Giving due weight to the fact that the injunction was obtained before the defendants moved onto the land in order to avoid this very situation, the fact that the defendants were aware that they were acting in breach of planning conditions and in breach of the order when moving on to the land and their continuing breach thereafter, application of the principles set out in the Mid Bedfordshire decision gives rise to a very strong factor in favour of the claimants. When the existence of alternative accommodation and the lack of realistic prospects on the planning application are taken into account, the result seems to me inevitable, notwithstanding the limited personal circumstances upon which the defendants rely and their Article 8 rights.

For these reasons the application to vary or discharge the injunction is refused and the injunction will continue.

It may be that the parties will wish to address me on the issue of costs or in relation to the practicalities and timescale required for the defendants to move off site but if these matters can be agreed so much the better. If an agreed order can be produced then there will be no need for the parties to attend before me on the formal handing down of this judgment.