Dacorum Borough Council v Purcell & Ors

Francis Purcell and his partner Mary are Irish Travellers who have four children: Barbara, Patrick, Francis and Tommy. George Purcell, the brother of Francis, is married to Mary with whom he has six children: Megan-Jolene, Margaret, Michael, Mary, Marissa and Rosanna. I refer to the members of this extended family collectively as the Respondents. Since January 2009 the Respondents have occupied, in their caravans, a site at Old Tree Place, Lower Icknield Way, Wilstone, Hertfordshire. Francis Purcell owns the land on which the caravans stand but neither he nor any of the Respondents has ever had planning permission for the change of use for the site so as to permit its use as a caravan site.

In these proceedings the Respondents challenge a decision made by a Planning Inspector dismissing their appeal against the refusal to grant planning permission for the change of use of the site. The Dacorum Borough Council (“the Council”) applies for an order striking out the appeal and for an injunction requiring the Respondents to comply with an enforcement notice upheld by the Planning Inspector and to cease using the site for the stationing of caravans.

The site forming the subject of the present proceedings is situated at the periphery of the Wilstone Reservoir, about 150 yards from the embankment. It is in a Site of Special Scientific Interest and a Nature Reserve, mainly because of its bird life and the reed beds of the reservoir. It is in open countryside and within an Area of Archaeological Significance. Public Right of Way No 43 passes to the north and west of the appeal site and connects Lower Icknield Way with the embankment of the reservoir. The site is close to the Chilterns Area of Outstanding Natural Beauty but not within it. It is an important site for anglers, birdwatchers and walkers.

Before they moved on to the land by the Wilstone Reservoir, the Respondents were sharing a pitch in Aylesbury but in or about October 2007 they were threatened with enforcement proceedings by Aylesbury Vale District Council, and so they vacated that site and moved around, staying in various towns in Hertfordshire and Buckinghamshire including Hertford, Watford, Hemel Hempstead and Aylesbury. They remained overnight in quiet lanes or in car parks of supermarkets. In 2004 Francis Purcell bought the land forming the appeal site. He says that it is land which has been used by Gypsies, from time to time, for many years.

It is an important part of Mr Purcell’s sense of grievance, although of only marginal relevance to the present proceedings, that at around the time when he bought the land, he spoke to one of the Council’s officers called Jim Henderson from whom he understood that he had a good chance of obtaining planning permission for a change of use. Mr Francis Purcell’s account of the conversation is that he was “misled” by Mr Henderson. He states:

“If we had known about the reservoir problem and that this would not get us planning permission we would never have bought this land”.

The account of the conversation by Mr George Purcell is a little different. He states “Mr Henderson had told us to tidy the site up and put a fence round and, who knows, we would have as good a chance as anybody for planning). I asked the Council to produce any contemporaneous record that they maintained of the conversation. They did have such a record; but it did not support Mr Francis Purcell’s account of it. In any event, Mr Henderson was not a planning officer and had no authority to give guidance on the probable outcome of planning applications. I conclude that Mr Francis Purcell placed on Mr Henderson’s words a construction which can be explained by reference to Mr Purcell’s aspirations rather than Mr Henderson’s words.

The Respondents did not move on to the site immediately after the purchase of the land by Francis Purcell. On the contrary, it was not until 30 April 2007 that Mr George Purcell applied for planning permission for a change of use for the stationing of 3 residential caravans plus 3 touring caravans for occupation by a single Travellers’ family, and for re-use of the existing buildings on the site as a day room and for permission to install a septic tank. The application was refused on 3 September 2007.

Mr George Purcell appealed against that decision to an Inspector who conducted his inquiry over three days on 3, 4 and 5 June 2008. The same Inspector at the same inquiry entertained a separate appeal by Mr George Purcell against an enforcement notice issued by the Council on 31 October 2007 requiring him to remove the hard-standing on which the caravans were sited at Old Tree Place, by the Wilstone Reservoir, to remove the septic tank, pipes and manhole there and to reinstate the land to the condition in which it had been before the construction of the hard-standing and septic tank. At the inquiry the Council was represented by counsel; as was the British Waterways Board, which intervened at (I was told) rather short notice. The Respondents were represented by a planning consultant, Alison Heine.

Dealing with the appeal against the refusal of planning permission, the Inspector first identified the issues. It has not been submitted to me that he erred in so doing. He itemised six issues as follows:

The Inspector dismissed the Council’s first five objections to the proposed development and turned to the sixth under the heading “Flooding”. He noted that the appeal site is within 150 metres of Wilstone Reservoir, a large raised reservoir within the meaning of the Reservoirs Act 1975. The reservoir stands about 8 metres above the appeal site and covers nearly 50 hectares. It is one of a group constructed between 1802 and 1839 to provide water for the Tring Summit and the Grand Union Canal. It is hardly necessary to state (although the Inspector does state at paragraph 3) that the escape of water to adjacent land some 8 metres lower is a potential hazard to life and property.

The grant of planning permission for a caravan site at such a place would raise obvious safety concerns, particularly in a case in which the caravans are likely to be occupied by children. The Inspector did not, however, base his decision principally on considerations of safety as such but on considerations of cost. In essence his concern was that the grant of planning permission for use of the appeal site for the stationing of Gypsy caravans would make it necessary for the British Waterways Board to undertake upgrading works at Wilstone Reservoir, so as to raise safety standards to the level appropriate for a reservoir located close to human habitation. He considered that the cost of these works would be “grossly disproportionate” to the benefits to be gained by the Respondents.

To understand the Inspector’s reasoning on this point properly, it is necessary to refer to the statutory obligations of the British Waterways Board. Wilstone Reservoir is a “large raised reservoir”, defined in section 1(b) of the Reservoirs Act 1975 to mean one designed to hold, or capable of holding, more than 25,000 cubic metres of water above the natural level of any part of the land adjoining the reservoir. Section 4 of that Act provides for the establishment of a panel of engineers. Section 12 imposes on the British Waterways Board the obligation to provide for the conduct of the inspection of large raised reservoirs by engineers appointed under the Act in the interests of public safety Engineers conduct their inspections and make recommendations to the British Waterways Board in accordance with a publication called A Guide to the Reservoirs Act 1975. That publication, at page 184, states that safety measures are to be taken if they are necessary to prevent an escape of water or a threat to persons or property. For the purpose of determining whether there is a threat to persons or property, account is to be taken of any community in the vicinity of the reservoir. The vicinity is defined as an area within 150 yards of the embankment. A community is considered for these purposes to be not less than ten people, but the assessment of a community is a matter on which Inspectors will exercise their judgment, for instance, in assessing the frequency of use by more than ten people of camp sites in the vicinity of reservoirs. These are points that Miss Heine appears to have overlooked in her report to the inspector, in which she states that no adequate explanation has been given by British Waterways Board for ignoring the close proximity of Pear Tree Cottage, the visitor car park, Mead Farm Shop and Lower Icknield Way.

Miss Busch, counsel for the British Waterways Board, confirmed that in the event of the grant of planning permission to the Respondents, the Board would expect an engineer to make a report requiring the Board to upgrade the works on Wilstone Reservoir to the standard of a Category A reservoir. That is because the planning permission sought by the Respondents would be for more than ten people; moreover to that number must be added any occupants of the only other dwelling in thee same vicinity: Pear Tree Cottage, a house with 3 bedrooms currently occupied by only one occupant. Paul Howlett, Senior Reservoirs Engineer for British Waterways, expresses the Board’s anticipation with remarkable confidence. He states:

“In the event that the development subject to the Appeal goes ahead, the Reservoir would be re-classified as Category A and further works would be required by the Inspecting Engineer.”

The works would entail, as a minimum, doubling the size of the weir and could include the enlargement of the downstream water-course. The Board would be bound to comply with the engineer’s report. Section 22 of the Reservoirs Act 1975 provides for the imposition of criminal penalties in the event of wilful default of the inspection provisions, save where there is a reasonable excuse. The British Waterways Board estimate that the cost of compliance would not be less than £250,0000 and might be much more.

The Planning Inspector reasoned that there was no evidence before him to show that the Respondents could meet this cost, as a developer would normally be expected to do by an agreement made under section 106 of the Town and Country Planning Act 1990. (Indeed in this appeal Mr Francis Purcell stated that after spending his available money on the purchase of the land, he was left with no money to pay for the upgrading of the reservoir.) The Inspector continued as follows:

“It would be wholly wrong of me to grant planning permission for the proposed Gypsy and traveller site as the costs of upgrading would fall on British Waterways, and that would be unreasonable and grossly disproportionate. Even if it were to be a temporary permission, that would not remove the liability of British Waterways to upgrade the reservoir. The proposal would not accord with the sustainability criterion in paragraph 64(e) of Circular 01/2006 [which requires account to be taken of the consideration that Gypsy and caravan sites should not be located in areas at high risk of flooding, including functional floodplains, given the particular vulnerability of caravans]. I find this to be a highly compelling and overwhelming objection to the whole proposal.”

Mr George Purcell appealed to the Inspector against the Council’s decision to issue an enforcement notice requiring him to remove the hard-standing and septic tank on the site at Old Tree Place, Wilstone and to reinstate the land to the condition in which it had been before the hard-standing and septic tank were installed. On this issue the Inspector’s task was made easier by Mr Purcell’s acceptance that the septic tank and associated works were not immune from enforcement action. Although there had been hard-standing on part of the site before the arrival of the Respondents, the Inspector found “on balance of probability” (in view of photographs taken by Council officers) that the matters which are the subject of the enforcement notice and not immune from enforcement as they were begun and completed in 2007.

No appeal against that decision has been lodged but I was urged by Mr Watkinson, counsel for the Respondents, that if allowing the appeal against the planning decision, or otherwise granting the Respondents temporary relief, I should make no order in respect of the hard-standing and septic tank, in the interests of the health of the occupants and particularly that of the children.

The Respondents challenge the Inspector’s Decision on the planning appeal, basing their challenge in section 287 and 288 of the Town and Country Planning Act 1990. Section 288 begins as follows:

“(1)

If any person

(a)

is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds—

(i)

that the order is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that order; or

(b)

is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—

(i)

that the action is not within the powers of this Act, or

(ii)

that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the High Court under this section.”

Mr Watkinson, for the Respondents, formally abandoned three of the five grounds of appeal settled on their behalf by counsel formerly representing them. The remaining grounds, on which I understand the Respondents still to rely, include the claim that the Planning Inspector erred in concluding that the Reservoir would have to be upgraded and in failing to consider whether the objections to the proposed development were outweighed by a combination of other material considerations including the rights of the Respondents under Article 8 of the European Convention on Human Rights (“ECHR”)

The Council applies for an order striking out the application (under CPR 3.4(2)(a) as disclosing no reasonable grounds for success or in the alternative for summary judgment (under CPR rule 24.2) as having no real prospect of success. Mr Goodman, for the Council, submitted that on the facts of this case there is no significant difference between the test prescribed by those rules. Referring to the speech of Lord Hobhouse of Woodborough in Three Rivers DC v Bank of England No 2, [2001] 2 All ER 513 at paragraphs 154-156, Mr Goodman, reminded me that the criterion to be applied in such a strike-out application is “absence of reality”.

To the extent that the Respondents complain of alleged defects in the reasons given by the Planning Inspector, it is helpful to bear in mind the words of Lord Brown of Eaton-under-Heywood in South Bucks DC v Porter (No 2), [2004] 1 WLR 1953 at 1964 paragraph 36:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to know how the policy or approach underlying the grant of permission may impact upon such future applications…”

The Planning Inspector set out in paragraphs 34 to 36 of his Decision his reasons for concluding that the Reservoir would have to be upgraded if the appeal were allowed. At paragraph 34 he explains that reservoirs are categorised in accordance with the Institution of Civil Engineers’ publication Floods and Reservoir Safety, which places on owners of reservoirs with a capacity exceeding 25,000 cubic metres the duty to provide for their inspection. At paragraph 35 he explains that a category B dam is one where a breach could endanger lives not in a community and a category A dam is one where a breach could endanger a community. As a community is defined as a group not exceeding 10 people he said at paragraph 36:

“The proposed development would therefore plainly bring about the reclassification of the reservoir to category A, due to the presence of the Gypsy and traveller community as well as Pear Tree Cottage.”

While I accept that it would have been possible for the Inspector to deal with this issue at greater length (for instance, by addressing the element of judgment that an engineer can exercise when determining whether a group of people numbering a little less or a little more than ten constitutes a “community”) I cannot detect in this part of the Inspector’s decision any failure to set out reasons intelligibly, consistently with the speech of Lord Brown of Eaton-under-Heywood in South Bucks DC v Porter (No 2). The Inspector’s words enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. They disclose how the issue of flooding was resolved. The reasoning does not give rise to a substantial doubt as to whether the decision-maker erred in law.

I therefore consider whether the Respondents have a realistic prospect of contending successfully that the Planning Inspector erred in concluding that the dam would have to be upgraded if planning permission were granted. Counsel for the Respondents submitted that since any upgrading works would take time to plan, commission and execute, the Inspector could and should have considered the grant of temporary planning permission to the Respondents. I do not agree. The Inspector’s decision proceeds on the basis that he has accepted the evidence (particularly that given for the British Waterways Board by its Senior Reservoirs Engineer, Paul Howlett) that engineers would make “binding recommendations … based on the community actually existing at the time of the inspection and regardless of whether the site is occupied lawfully or unlawfully under planning legislation”. The Inspector was satisfied that even if temporary planning permission were granted an Engineer was likely to make a report obliging the British Waterways Board to upgrade the reservoir. That is the sense of the Inspector’s statement that “Even if it were to be a temporary permission that would not remove the liability British Waterways to upgrade the reservoir”.

I do not consider that the ground on which the Respondents now wish to pursue their appeal establishes a realistic prospect of success. In Ashmore v Corporation of Lloyd's [1992] 1 WLR 446 at pp. 453-4, Lord Templeman objected to the practice of taking "every point conceivable and inconceivable without judgment and discrimination" and exhorted judges and appellate courts to control the conduct of proceedings. Lord Roskill agreed with him (at p.448), saying:

Indeed, since the Inspector was satisfied, on the evidence, that the grant of temporary permission would not remove the liability British Waterways to upgrade the reservoir, he is all the more likely to have concluded that (as he did) that the imposition of the cost of upgrading on the British Waterways Board would be “grossly disproportionate”. The benefit to the Respondents of temporary planning permission was bound to be less than the benefit of indefinite planning permission. For instance, temporary planning permission would not meet the children’s need for stable and continuing education. If the same cost to the British Waterways Board is weighed against a diminished advantage to the Respondents, the disproportion between cost and benefit grows. I therefore conclude that on the first of their proposed grounds of appeal the Respondents do not have a have a realistic prospect of success.

I turn to the second ground of appeal, which I take to be the ground on which the Respondents placed greater reliance, because it was developed before me at greater length than the first. By this ground the Respondents contend that the Inspector erred in failing to consider whether the objections to the proposed development were outweighed by countervailing considerations including the Respondents’ claim based on Article 8 of the ECHR.

Article 8 of the ECHR provides:

The applicability of Article 8 to a planning application by Gypsies and travellers was considered by the European Court of Human Rights in Application 2723/95, Chapman v United Kingdom, 18 January 2001, 33 EHRR (2001) 399, which concerned another Gypsy family (this time from, the Watford area) who bought land on which to place their caravans, stating that they did so upon the understanding that they would be granted planning permission, which was not forthcoming. At paragraph 73 of the judgment the Court stated:

“The Court considers that the applicant's occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures affecting the applicant's stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition.”

The Court concluded, however, that there was no violation of Article 8 in the circumstances of the case since a degree of deference is to be given to the judgment by the national authorities in any particular case that there are legitimate planning objections to a particular use of a site

It was submitted on behalf of the Respondents that in the present case the Planning Inspector should have referred to, and taken into account, the value attributed by the ECHR to the Respondents’ occupation of their caravans as an integral part of their ethnic identity as Gypsies,; whereas no mention of Article 8 is made in the Inspector’s decision. It was in this context that I was referred to Lough v First Secretary of State, [2004] 1 WLR 2557 at 2564, paragraphs 15 and 16 in support of the proposition that citation of the ECHR maybe appropriate even when it has not been pleaded. On behalf of the Council it was contended that the Inspector referred to the considerations forming the content of Article 8 in his decision at paragraph 27 (where he mentioned the educational needs of the children). Although I can see that there would have been some advantage in citing Article 8, in a case in which the Inspector had to weigh the Respondents’ interest in their private and family life against the protection of the rights and freedoms of others, I cannot find any basis on which it can plausibly be contended that this would have made any difference in the present appeal.

The Inspector plainly had in mind the Respondents’ interest in establishing a stable home, which would form a basis for the education of the children, and for visits to the hospitals in which both Mr Francis Purcell and Mr George Purcell had undergone treatment. He referred in paragraph 27 to the advantage to the Respondents of good access to a GP and “local shops, including the Farm Shop next door for everyday needs” as well as a paddock for keeping horses. Acknowledgment of the special status accorded to private and family life by the ECHR might have added some weight to the Respondents’ interests, which had to be balanced against those of others. The additional weight accorded by Article 8 itself is, however, qualified by the Chapman case in which the European Court of Human Rights stated at paragraph 102:

“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.”

So even if he had referred expressly to Article 8 of the ECHR, the significance of that reference would have been reduced by the fact that where a dwelling is established without planning permission, the rights of the person who has established that dwelling must be qualified by reference to the right of others in the community to environmental protection

The cost to the British Waterways’ Board of providing the upgrading works made necessary by the Respondents’ presence at the site must be weighed against the Respondents’ right to private and family life (an expression that I use for brevity to describe the whole of the rights guaranteed by Article 8(1) of the ECHR). The Inspector found that the cost of these works was “grossly disproportionate” to any advantage to be gained by the Respondents. So even if the Inspector had made an explicit reference to Article 8 of the ECHR, this is unlikely to have affected the outcome before the Inspector. In Lough v First Secretary of State, [2004] 1 WLR 2557 at 2563, Pill LJ said:

“It is inconceivable that [the Inspector] would have reached any different conclusion if he had specifically dealt with proportionality. The obstruction of the views for some and any diminution in value would not have affected the position having regard to the Inspector’s findings in relation to the desirability of the development.”

Likewise, in the present case, in which the Inspector did deal specifically with proportionality, it is inconceivable that he would have reached any different decision if he had referred expressly to Article 8 of the ECHR. His failure to do so cannot give the Respondents a realistic prospect of success in contending that the action taken against them was not within the powers if the Town and Country Planning Act, or is otherwise reviewable under section 288 of that Act.

In expressing my reasons as I have done, I must not be taken to concede that Article 8(1) of the ECHR protects, as an aspect of private and family life, the claim of a Gypsy to occupy land on which he has never been granted planning permission. That very issue is currently before the Court of Appeal in the case of Rafferty, which is (I am told) due to be heard on 23June 2009.

I next consider the significance of a fresh planning application for planning permission at the site made by the Respondents (apparently by e-mail) on the eve of the commencement of the hearing before me. It appears that the fresh application differs in one significant respect from application refused by the Council on 3 September 2007. The material difference was that the fresh application related to proposed planning permission for occupation of the site by only six persons. The apparent reasoning is that even if Pear Tree Cottage were occupied by four people, the local community would be no more than ten so that upgrading of the reservoir might be unnecessary.

The Council immediately rejected the fresh application on two formal grounds: no plans were included and no fee paid. I presume that those issues could be addressed relatively speedily if the appropriate plans and fee were forthcoming. The Council made a more fundamental submission, however. The submission was that there was no prospect of the fresh application succeeding. The Inspector had reasoned that a limit could not be placed on the number of occupants of Pear Tree Cottage, which had there bedrooms. If asked to approve planning permission for a Gypsy site only 150 yards from the embankment of the reservoir, occupied by six people, he would be bound to conclude that an engineer would require the British Waterways’ Board to upgrade the reservoir. In other words, even the grant of planning permission for one static and one travelling caravan, to be occupied by six people, would expose the British Waterways Board to the cost of upgrading. Any prospect of approval of the fresh application would be fanciful, not realistic. Moreover considerations of safety would apply to a development for six people (including four children) as they would apply to a development for a greater number.

The Council’s application for an injunction is made on the basis of section 187B of the Town and Country Planning Act 1990 which authorises a local authority to apply to the court for an injunction where “it considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction … whether or not they have exercised or are proposing to exercise any of their other powers under this Part”.

In considering whether to grant the injunction I bear in mind the guidance given by Lord Bingham of Cornhill in South Bucks District Council v Porter [2003] 2 AC 558. The jurisdiction of a court to issue an injunction under section 187B is original, not supervisory. It is a discretionary power, to be exercised with due regard to the purpose for which the power was conferred, that is, to restrain actual or threatened breaches of planning control. Where it appears that a breach or apprehended breach will continue or occur unless and until it is effectively restrained by law and that nothing short of an injunction will provide an effective restraint, this will point strongly to the grant of an injunction: City of London Corporation v Bovis Construction Ltd, [1992] 3 All ER 697, 714. Account is to be taken of the personal circumstances of those to whom an injunction may be addressed; and the judge will be slow to make an order that he would be unwilling, if need be, to enforce by imprisonment.

In concluding that an injunction is appropriate I bear in mind the following considerations:

For these reasons I allow the application for an order striking out the Respondent’s application (under CPR 3.4(2)(a) as disclosing no reasonable grounds for success; and grant the Applicants’ application for an injunction, on the basis that it shall not take effect before midnight on 31^st July 2009.