Broxbourne Borough Council v Robb & Ors

This is an application by the claimant, Broxbourne Borough Council (“the council”) for the committal to prison of the second defendant, Mr Beary, for contempt of court for breach of terms of a without notice injunction. The application is made under RSC, O52. As well, Mr Beary has made an application to vary the injunction. Mr Beary is an Irish traveller. As with gypsies, Irish travellers are a recognised ethnic group. Mr Beary resides with his wife and four children in caravans stationed on land known as plot 19, Wharf Road, Wormley, Hertfordshire (“plot 19” or “the site”). The site lies on the western bank of the River Lea and within the green belt.

Over the years the site and adjacent sites on Wharf Road along the River Lea have been used for leisure purposes. Planning law enables small and unobtrusive buildings to be erected but moveable structures such as caravans for permanent residential use are not permissible. Moveable structures such as caravans are not permissible. Since its foundation in 1966 the Lea Valley Regional Park Authority has been endeavouring to acquire the plots along Wharf Road to secure the long term future of the area. Of the 73 plots along Wharf Road, by 2010 50 were owned by the Lea Valley Regional Park Authority, on 2 of which the Authority was allowing caravans to be stationed for the time being. Of the remaining 23 plots 13, including plot 19, were in the council’s view being used unlawfully for the stationing of caravans. Residential use is authorised for only one plot, and that is a result of long usage, not specific authorisation. The remaining plots are not used for caravans, although in some cases other development has taken place. It seems that it was from about the year 2000 the plots with residential caravans have been occupied by gypsies and travellers.

As to the site itself, plot 19, the council’s officers have been monitoring its use for some time. In recent years this has involved regular visits and the taking of photographs as to activity on the site. Because of suspicions that the site was to be developed by gypsies and travellers, the council applied for an injunction pursuant to section 187B of the Town and Country Planning Act 1990. On 1 May 2008 Ouseley J granted a without notice injunction which prohibited, inter alia

“d.

Causing or permitting any caravans, mobile homes, or other residential accommodation or structures to be stationed on plot 19 (other than the touring caravan present on plot 19, 24 Aprl 2008);

e.

Occupying or causing or permitting the occupation of caravans, mobile homes or other residential accommodation that are stationed on plots 14 or 19.”

A copy of the injunction was attached to the fence around plot 19 and the council’s photographs reveal that a copy was there at various points in 2008 and 2009. When visiting on several occasions in 2009 Laura White, an enforcement officer with the council, observed that the plot was generally scruffy with a certain amount of rubbish, muddy when it had rained, and occupied by two fairly decrepit touring caravans, with no sign of active residential use.

In October 2009 Mr Beary purchased the site from the first defendant, a cousin. He had already been using it intermittently for residential purposes from earlier that year. He moved his family on to the land some time in the summer of 2010. Unfortunately his witness statements for this hearing are not as helpful as they could be, but it seems that at the time the family had been staying with relatives in London. Mr Beary describes how he knows other families on the Wharf Road site and in the immediate locality. However, it is accepted that Mr Beary did not know of the injunction at the point he moved onto plot 19. Three of Mr Beary’s children now attend the local Wormely Church of England primary school. A recent letter from the head teacher explains that the children are making good progress, with the special assistance available at the school for gypsy and traveller children. The family is also attending a local Catholic church.

When she visited plot 19 in early July 2010, Mrs White observed that the entire plot had been laid with gravel and that the rubbish and touring caravans had been removed. There was now a large mobile home stationed on the plot, although no one was present. When she visited again on 26 August there was still a large mobile home there and a touring caravan. The plot had been cleared. Mrs White searched the Land Registry the following month, which revealed that the registered proprietor of plot 19 was now Mr Beary. On 24 November 2010 she wrote to Mr Beary at the address given on the Land Register, in fact his mother’s address. She enclosed a copy of the injunction and explained its requirements, informing him that the council would allow him 14 days to comply with its requirements.

Meanwhile, on 28 September 2010, the council’s Planning and Licensing Committee had authorised enforcement action is respect of residential use of the site. This was in the context of their consideration of the position of Wharf Road as a whole, to which I return. Prompted by receipt of the injunction Mr Beary telephoned Mrs White on 1 December 2010, told her about his personal circumstances and said that he had not previously been aware of its existence. Mrs White noted that Mr Beary needed advice on what to do. Mrs White visited the site again on 10 and 13 December 2010, when she met Mr Beary’s wife. It is the residential use of the site on those dates, which Mr Beary accepts, which forms the basis of this committal application.

On 14 December Mr Beary attended the council’s offices and outlined to Mrs White the detail of his family’s personal circumstances. At the outset of the interview Mrs White explained that the council needed to gather information on Mr Beary’s circumstances so that it could be taken into account when considering any action for breach of the injunction. During that interview Mr Beary said that prior to moving to Wharf Road he and his family had travelled around, including on the continent, and that he had started living on plot 19 on a sporadic basis about twelve to eighteen months previously. His family had joined him there four to five months ago. Family members lived elsewhere on Wharf Road, and that was why he had moved there. He explained about his children being in school and that previously they had moved schools frequently as the family travelled. The family had no health care issues and were registered with a GP. He told Mrs White that the family had nowhere else to go.

On 20 December 2010 the council applied for Mr Beary’s committal for contempt. The proceedings were served on him on 4 January 2011, when Mrs White advised him to seek independent legal advice. The principal planning officer at the council, Mr Quaile, explains in his witness statement that Mrs White had informed him of her discussions with Mr Beary so he was fully aware of the children and Mr Beary’s claim that he had nowhere else to go. Mr Quaile says that if there had been a real question whether committal proceedings were appropriate he would have been able to refer the matter back to the Planning and Licensing Committee so it could review its instructions, but since an injunction already existed in relation to plot 19 he did not consider that there was any issue about instigating such proceedings.

On 17 January 2011 the council received an application in relation to plot 19 from Heine Planning Consultancy. On Mr Beary’s behalf it sought permission for a change of use of the leisure plot to a caravan site for the stationing of two caravans for residential occupation by a single gypsy-traveller, with a shed. The application stated that the existing use of the site was “unauthorised caravan site for [a] gypsy family”. On 8 March 2011 the council’s Planning and Licensing Committee refused the application. It gave five reasons: inappropriate development within the green belt; the location of the site in a high risk flood area; the location of the site within the designated boundary of the Lea Valley Regional Park; the applicant’s failure to provide sufficient information regarding the suitability of existing water, sewage and electricity infrastructure; and the interests of highway safety, since its occupation would result in an intensification of use of an un-manned level crossing on the London to Stansted railway line. That refusal of planning permission is subject to appeal. The appeal is to be heard by an inspector appointed by the Secretary of State for Communities and Local Government on 27 July 2011. The outcome may not be known until September.

Before this court this committal application has had an unfortunate procedural history. It first came before the court on 20 January 2011, when the judge adjourned the matter for the filing of an application by Mr Beary to vary the terms of the injunction. On 27 January Mr Beary’s solicitors lodged an application to vary. That was so as to permit Mr Beary and his family to remain on the land until final determination of the planning appeal and for a stay of the committal proceedings. Further hearings were adjourned on 17 February and 21 March. On 13 April the case was adjourned yet again, when the judge granted Mr Beary’s application to adduce further evidence.

At the outset of the current hearing an application was made on behalf of Mr Beary for an adjournment until the outcome of his planning appeal was known. Three points were made by Mr Willers in support of the application: first was the need for the court, pursuant to the Overriding Objective of the Civil Procedure Rules, to manage cases actively so as to use judicial resources efficiently. If the inspector were to allow the appeal, the injunction would be rendered nugatory and thus these proceedings would, with hindsight, be seen to be unnecessary. Secondly, Mr Willers referred to the open offer which Mr Beary’s solicitors made on 31 May 2011, which was that Mr Beary would undertake to vacate the land and comply with the terms of the injunction within 28 days of the determination of his planning appeal if it were dismissed. The council have rejected that offer. Thirdly, there is the delay in the council taking action in relation to committal proceedings.

In my judgment it was not appropriate to adjourn the hearing. Given the history of the false starts of the application the Overriding Objective pointed in my view in a diametrically opposite direction to that perceived by Mr Willers. Secondly, the ramifications of the adjournment proposed would be to deprive the injunction of any force, whatever the outcome of the appeal. As indicated the appeal hearing will take place on 27 July although it may not be for some time until after that before the inspector publishes his or her decision. So for a very substantial period Mr Beary would have been in occupation of plot 19, in breach of the injunction. An adjournment would mean that the court would continue the injunction in force knowing that it will be breached. That to my mind was a situation better avoided; the more desirable course was to address the committal and variation applications head-on. As to delay on the part of the council, that is a quite separate issue from whether the court should sanction a further breach of one of its orders.

Three areas of planning policy were canvassed before me as background to the current application. The first concerns planning policy for gypsy and traveller caravan sites. There is no need to traverse the history of the matter, some of which was addressed by a decision of Sedley J, to which Mr Willers referred, R v Lincolnshire County Council ex parte Atkinson [1997] JPL 65. However, it is accepted that there has long been a significant shortfall in accommodation for gypsies and travellers throughout England and Wales. Circular 1/06 “Planning for gypsy and traveller caravan sites”, which replaced Circular 1/94, aimed, inter alia, to increase significantly the number of gypsy and traveller sites in appropriate locations with planning permission, and at the same time to promote community inclusion of gypsy and traveller communities and respect for their traditional way of life. Local planning authorities were to assess the accommodation needs of gypsies and travellers, information which would be fed into regional strategies. Subsequently, individual local planning authorities were to be required to produce their own development plan documents to set out site specific allocations for the number of pitches which the regional strategies had specified.

Under national planning policy contained in PPG “Green Belts”, gypsy and traveller sites in the greenbelt are normally inappropriate development, although planning permission may be granted when there are very special circumstances justifying it: the harm by reason of the inappropriateness and any other harm must be clearly outweighed by such circumstances. Paragraph 45 of Circular 1/06 refers to local planning authorities giving consideration to granting temporary planning permission where there is an un-met need but no available alternative gypsy and traveller site provision in an area, if there is a reasonable expectation that new sites are likely to become available in the area at the end of the period to meet the need. Paragraph 46 states that in such circumstances local planning authorities are expected to give substantial weight to the unmet need in considering whether temporary planning permission is justified.

After the election in May 2010, the new Secretary of State for Communities and Local Government announced that regional strategies would be abolished. In R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin) Sales J held that the purported revocation of regional strategies by executive action was unlawful. The government’s chief planner said that the government’s intention rapidly to abolish regional strategies should be taken into account as a material consideration by decision makers. In fresh judicial review proceedings the Court of Appeal held that the government’s intention to abolish regional strategies could be a material consideration in a local planning authority’s decision-making: R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWCA Civ 639 (judgment delivered 27 May 2011). However, in the course of his judgment Sullivan LJ said that given the very early stage that the proposed abolition of regional strategies had reached in the legislative process, and the fact that revocation of any individual regional strategy would be subject to the strategic environmental assessment process, many planning inspectors and chief planning officers may well consider that they should give little, if any, weight to the proposed abolition of regional strategies in the decisions that they were currently taking. That position would change if the proposal progressed, or failed to progress, through the legislative and environmental assessment process. Rimer and Rix LJJ agreed. At the time of the hearing before me the relevant legislation, the Localism Bill, had passed all stages in the House of Commons and was about to go into committee in the House of Lords.

The government has also published a draft planning policy statement “Planning for traveller sites” following its announcement that it intended to withdraw C1/2006 and replace it with “light touch” guidance. The consultation period will close in early July. The consultation document says that it forms part of a broader set of policy pronouncements to provide a fairer deal for traveller communities and settled communities. There is a perception among many that currently policy treats traveller sites more favourably than other forms of housing in gaining planning permission in the green belt, which has led to the belief that the system is unfair and has undermined community cohesion. Top down targets are rejected, and in the context of pitch and plot provision for gypsies and travellers the notion of allowing local planning authorities to make their own assessment of need advanced. It is said that the inclusion of the word “normally” in the statement in Circular 1/2006, that new gypsy and traveller sites in the green belt are “normally inappropriate development”, may give rise to applications by travellers being treated more favourably than these from settled communities. In the draft planning policy statement attached to the consultation document there is a general presumption against inappropriate development within the green belt, traveller sites in the green belt being inappropriate development without the adverb “normally”. Green belt boundaries should only be altered exceptionally to meet a specific identified need for a traveller site.

At a local level the development plan for Broxbourne presently consists of the east of England regional strategy and the Broxbourne Local Plan. The Broxbourne local development plan documents will become part of the development plan when adopted. The council intends to have a core strategy development plan document coupled with a specific allocations development plan document. The council intends to have a core strategy development plan, coupled with specific allocation development plans. The local plan does not contain a specific number of pitches for travellers and gypsies. In July 2009 the regional strategy gypsy policy for the east of England required Broxbourne to provide eighteen new pitches in the period 2006-2011.

After the publication of the regional strategy gypsy policy, the council’s Planning and Licensing Committee endorsed an officer’s report in relation to Wharf Road in September 2009. That had pointed out the difficulties involved in taking enforcement action against residents who had been present at Wharf Road for some time. Among the options advanced were seeking injunctions to prevent further unauthorised occupation and exploring the practicability with the Lea Valley Regional Park Authority of a site at Wharf Road to regularise other gypsy and traveller occupation. The latter was abandoned when the Lea Valley Regional Park Authority strongly opposed the grant of any planning permission for gypsy and traveller caravans at Wharf Road.

In September 2010 the council’s Planning and Licensing Committee again reviewed the position at Wharf Road and noted the breaches of planning control including at plot 19. The majority of the occupied plots at Wharf Road had been lived on for at least two years. The committee considered that it was not expedient to take enforcement action without significant progress being made towards the provision of a new gypsy and traveller site. However, it endorsed the planning officer’s recommendation that a different approach be taken in relation to very recent breaches.

The council’s Core Strategy Submission Draft published in December 2010 was prepared before Sales J’s decision in the Cala Homes case. Thus it was at a time when the council thought there was no effective regional strategy pitch requirement. The draft indicated that the council would allow for household formation within the existing gypsy and traveller community and to that end would allow the expansion of two existing private sites and the relocation and expansion of an existing public site, run by the Hertfordshire County Council. It noted that the implications of enforcement action and other action at Wharf Road would be considered as part of a site allocation development plan document on the basis that a new site may be needed for relocating gypsies and travellers. Beyond that there was no pitch requirement. In a submission to the planning inspector considering the core strategy the council has said that any alternative site for Wharf Road residents would be designed to accommodate long term residents only and would consist of perhaps seven pitches. Any new site for Wharf Road residents would be elsewhere in the borough. The public examination of the Core Strategy Submission Draft has been completed and the inspector’s report is awaited.

There is a draft report, “Gypsy and Traveller Site Search Borough of Broxbourne”, prepared for the council in March 2011. It identifies the unmet need for gypsy and traveller sites. As to the part of Wharf Road along the River Lea, it recommends that its potential be developed for the Lea Valley Regional Park and the reduction of flood risk. The draft report identifies three areas as having potential as a new site for gypsy and traveller caravans. One of these would provide 15 pitches and be located at the southern end of Wharf Road where it turns westwards to cross the London to Stansted railway line.

A second aspect of planning policy relevant to the current proceedings is that relating to flood risk. PPS 25, “Development and flood risk” provides that caravan and park home sites intended for permanent occupation are regarded as “highly vulnerable”. Highly vulnerable development is not permissible in zone 3a flood plans, defined as having a high annual probability of flooding, 1% in any year. The Environment Agency has taken the view that the plot at Wharf Road is in the category of flood zone 3a, It has concluded that flooding at that scale would breach the flood defences along the River Lea pertinent to this site and that the use of caravans and mobile homes along Wharf Road would not be appropriate. It considers that the depth of flood water on the access road to plot 19, in the event of a 1 in 100 year flood, would be dangerous. Mr Beary’s expert, Ian Walton, contends that the part of plot 19 where the caravans are stationed would not be inundated in a 1 in a 100 year flood. There is a dispute between the parties as to whether the figures he has used assume that the flood defences are working.

In his report Mr Walton refers to a number of decisions where planning inspectors have considered the siting of a static mobile home in a zone 3 flood plain and of flooding and have concluded that since the flood risk could be adequately mitigated there were other circumstances which outweighed the harm identified in PPS 25. Appeal decision APP/J1535/C/O8/2092870 concerned land in Nazeing, Essex, where the flood threat also came from the River Lea. The appeal related to a breach of planning control by the stationing of a mobile home and two caravans for residential purposes on green belt land. Recalling that caravans and mobile homes intended for permanent residential use were defined in PPS25 as a “highly vulnerable” development, and that the land was in flood zone 3, the inspector concluded that permanent planning permission would not be expected, since it would put the occupiers at risk and would be contrary to both government policy in PPS25 and the local plan. The suggestion that the occupiers sign up to a flood early warning system, that the caravans be tethered, and the floor levels of mobile homes be raised were not sufficient measures, in her view, to justify the presence of the large family with young children living at risk in the flood zone.

However, the inspector concluded that temporary planning permission was appropriate when taking into account the balance of considerations. In her view the acknowledged need for gypsy sites both nationally and in the area, and the advantages of the site in other respects, were not sufficient to outweigh the totality of the harm identified. There were the personal circumstances of the appellant and his family, their pressing need for a site and the severe medical condition of one of the children, with the advantages that the site had for him. While these could not justify the grant of permanent planning permission, to force the family onto the road or onto illegal stopping places, was not an appropriate response when taking into account the severe medical condition of that child and the special needs arising from it. The pressing needs of the family in the short term tipped the balance in favour of a grant of temporary planning permission.

Finally in relation to the planning policy background is the aspiration for a regional park. The Lea Valley Regional Park Authority has objected specifically to Mr Beary’s development on plot 19 since the principle of new development for gypsy and traveller accommodation in the River Lea Valley County Park is inappropriate on grounds of visual impact and that residential use is not compatible with the green belt or the regional park. That is supported by the council’s own policy, as contained in the emerging Core Strategy, where the council indicates that it will work with the Lea Valley Regional Park Authority to deliver its objectives.

As background to his contention that the council’s application for committal is legally flawed, Mr Willers began with what he said was the delay in their enforcement action. Mr Beary had been on the site intermittently in 2009 before he purchased it and his family were there from the summer of last year. Delay meant that during that period his children settled into the local school and the family attended the local Catholic church. When the council’s Planning and Licensing Committee endorsed enforcement action in September last year they were unaware of the identity and personal circumstances of those residing on the land. Therefore they did not consider the particlular impact of enforcement action on the Beary family. After Mrs White uncovered the personal circumstances of the family, the officers decided to take committal action, without referring the matter back to the committee and without considering alternatives. There was a closing of the council’s mind in that the evidence is that only one option was considered, the pursuit of a committal application.

That decision is also flawed, in Mr Willers’ submission, because the council failed to consider the Race Relations Act 1976 and Article 8 implications of taking committal action, and the impact of such action on the children. In this regard Mr Willers referred to the council’s “Corporate Equalities Annual Report 2009-2010”, where certain general weaknesses are exposed. The council officers were aware of Mr Beary’s children and their schooling and that Mr Beary said they had nowhere else to go. In Mr Willers’ submission it was incumbent on the council to give anxious consideration to the personal circumstances of Mr Beary and his family; to the lack of alternative sites; to the inevitable consequence of committal, in particular the impact on the safety and welfare of the children if they were in an unlawful roadside encampment; the implications of the Race Relations Act 1976; the Article 8 rights engaged; and whether a less intrusive measure would be proportionate. This they failed to do.

South Cambridgeshire District Council v O’Brien [2008] EWCA Civ 1159; [2009] BLGR 141 is leading authority relevant to the submissions about the unlawfulness of the council’s application for committal. It involved whether a local authority had failed in its statutory duties under the Race Relations Act 1976 when it decided to apply for an injunction against a number of travellers who were occupying mobile homes on plots of land in breach of planning control. The judge had granted the injunction against using the land for the siting of residential mobile homes and/or caravans but had allowed a period of three months in which to comply.

Section 71 of the Race Relations Act 1976 imposes an obligation on bodies like the council to have due regard to the need to promote equality of opportunity and good relations between persons of different racial groups. The attendant code of practice directs decision makers to consider whether a policy aim can be achieved without causing an adverse impact on a racial group or whether the adverse impact could be reduced by taking particular measures. It was contended that the application for the injunction was ultra vires because it had failed to take into account the Race Relations Act duty or that, if the application had been properly made, the failings of the council should have led the court to exercise its discretion to refuse the injunction. The failure to consider alternatives was advanced under both heads as a failure to consider making another site available. The Court of Appeal held that even if the council had fallen short in its duty under the Race Relations Act the court in exercising its discretion could remedy those failings: [33], [35].

Although the O’Brien case was decided in the context of the application for an injunction, it seems to me the same principle applies in the case of an application for committal for breach of an injunction. Indeed, the fact that the court’s order on a committal application can be tailored to the circumstances of the individual case, by contrast with an application for an injunction, where the court has the stark choice of deciding whether or not to grant it, means that the O’Brien principle is even more apposite. Thus any flaws in the council’s decision-making in applying for the committal of Mr Beary can be remedied by this court.

In any event, I am not persuaded that there are any flaws in the council’s decision-making. Take the duty under section 71 of the Race Relations Act 1976. In Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141; [2009] PTSR 809 Dyson LJ recalled that the duty was to have due regard to the need to promote equality of opportunity and good relations between persons of different groups. “Due regard” meant regard appropriate in all the circumstances, including on the one hand the importance of the areas of life of members of the disadvantaged racial group affected by the inequality of opportunity and the extent of the inequality, and on the other hand such countervailing factors as were relevant to the function of the decision maker: [31]. In that case Dyson LJ held that a powerful countervailing factor to the disadvantages experienced by gypsies and travellers was the location of the appeal sites on greenbelt land: [33]. The planning inspector’s failure to make explicit reference to section 71 was not determinative but the issue in every case was whether in substance due regard was had to the relevant statutory need: [36]-[37]. Sir Robin Auld and May LJ agreed.

In my view it cannot be said that the council in the present case has not discharged its duty under section 71 of the Race Relations Act of 1976 in initiating committal proceedings. Although there is no explicit reference to that duty in the papers, it is clear that in substance the council has had regard to the special position of gypsy and traveller occupants at Wharf Road. Certainly in Baker the inspector made references to circular 1/2006 and why the alternative authorised sites were not available to the appellants. Although there is no such mention here the decision to take committal proceedings in Mr Beary’s case was made against that backdrop. The council’s Planning and Licensing Committee has had involvement in the matter over the years. In taking enforcement action it has discriminated between those residents who have been in occupation for a time, against whom no action has been taken until alternative sites are available, and more recent arrivals. The presence of long term residents who are not affected by an injunction does not preclude committal proceedings against someone like Mr Beary who is not. It seems to me that the council have had due regard to the position of Mr Beary as an Irish traveller. Moreover, the countervailing circumstances in his case are strong. Mr Beary’s prospects on his planning appeal are addressed below, but at this stage it need simply be noted that he faces high hurdles. Moreover, there are the considerations about the extent to which the court can tolerate the flouting of its orders, a point to which I also return.

Mr Beary has applied to vary the terms of the injunction. It is said on his behalf that his planning appeal stands a realistic prospect of success, and is due to be heard shortly, and that the family has nowhere else to go. In those circumstances, Mr Willers submitted, it would be proportionate to vary the terms of the injunction to enable Mr Beary and his family to remain living on the site while the appeal is being determined. That is especially the case when coupled with his personal circumstances, the clear and urgent need for additional sites for gypsies and travellers in the area, the delay on the part of the council in taking proceedings, and because the injunction was not directed at Mr Beary personally when granted in 2008, indeed was not known to him until after he had moved his family on to the site.

In cogently developing Mr Beary’s case on the prospects of success of his planning appeal, Mr Willers conceded that few if any gypsy sites have been found to amount to appropriate development within the green belt. However, planning permission has been granted in a number of instances on the basis that very special circumstances were found to justify the development, especially in circumstances where there was a severe shortage of suitable alternative accommodation to meet their needs. Despite the stated intention of the government to abolish regional strategies and to rescind circular 1/06, Mr Willers submitted that at this point implementation of those aims was still at some considerable distance in the future. When the inspector determines the appeal in July regional strategies will most likely still be in place, as will circular 1/2006.

Moreover, continued Mr Willers, expert evidence from Mr Beary’s planning consultant, Mrs Heine, who has considerable experience in seeking planning permission for gypsies and travellers, is supportive. There are the material considerations in the balance in favour of Mr Beary, such as the accommodation needs for gypsies and travellers in the area, his family’s needs and personal circumstances and their Article 8 rights and the race equality duty, all of which point in favour of the grant of temporary planning permission. There is also the flood risk report prepared by Mr Walton and the contradiction in this respect in the borough’s own policy, which would permit the stationing of caravans for leisure use, when those caravans may be subject to greater threat through a lack, for example, of the anchorage which residential caravans might be required to have under a condition attached to the grant of temporary planning permission. Appeal decisions such as that concerning the land in Nazeing, Essex, referred to earlier, are inconsistent, in Mr Willers’ submission, with the council’s contention that flood risk is an overriding factor.

Mr Willers made reference to a number of decisions in support, including South Buckinghamshire District Council v Smith [2006] EWHC 281 QB. There David Clarke J concluded, in the light of paragraphs 45 and 46 of circular 1/06, that it would be disproportionate to force a gypsy family to leave their site situated in the green belt. They had occupied it in breach of planning control for thirty-two years, despite having been subject to prosecution and injunction proceedings on a number of occasions. David Clarke J held that there was a real chance that they might obtain temporary planning permission following the determination of an extant planning application, and so refused an injunction. Injunctions were also refused in comparable circumstances in South Cambridgeshire DC v Price [2008] EWHC 1234 (Admin) and Brentwood Borough Council v Ball [2009] EWHC 2433 (QB).

But in each of these single judge decisions the applications were for an injunction, not for the ensuing application for committal on its breach. In my view a trilogy of decisions of the Court of Appeal are both directly relevant and binding. These establish that in committal applications and applications to vary injunctions which are being breached maintaining the authority of court orders is an overarching consideration.

The first was Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] 1 WLR 1460, where a gypsy had purchased a plot of agricultural land in an area of great landscape beauty within the green belt. He informed the council that he intended to keep horses there. The council obtained an interim injunction to restrain its use for residential purposes, with liberty to apply. In breach of the injunction the defendant and his family moved caravans on to the land, which had always been his intention. He subsequently submitted an application for planning permission but failed to provide timely information to the council about it. The judge granted a final injunction but suspended it pending determination of the planning application, taking into account the interests of the young children on the site.

The Court of Appeal held that the judge had wrongly exercised his discretion and should not have suspended operation of the injunction. Lengthy suspension would tend to defeat the whole purpose of applying for an injunction to enforce planning controls and would dilute the requirement for obtaining prior planning permission for a change of land use. Giving the judgment of the court, constituting Lord Phillips MR, Jonathan Parker LJ and himself, Mummery LJ said that suspension did not take proper account of the vital role of the court in upholding the important principle that court orders should be obeyed. He continued:

“25 … The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or modify the order. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to the court.”

Maintaining respect for the court orders, the authority of the court and the rule of law were overarching considerations which far outweighed the factors favouring suspension of the injunction so as to allow the defendants to continue to reside on the land in breach of planning control: [27].

South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429; [2006] 1 WLR 658 followed just under a year later. There the local councils obtained injunctions restraining unknown persons from stationing gypsy caravans on certain land. Subsequently the defendants in the cases before the Court of Appeal entered the land with their caravans and committal proceedings were instigated. In the cases the judges committed the defendants for contempt of court. The Court of Appeal upheld their decisions and that there was no need to conduct the balancing exercise which would have been required under South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 AC 557 if the applications had been for an injunction. Citing the Brown decision Sir Anthony Clarke MR held that the principles set out there informed the correct approach of the court to cases in which defendants occupy land without planning permission and in disobedience to the orders of the court. In those cases there had been no applications to vary the injunctions, but Sir Anthony Clarke said that the Brown principles were relevant if there had been. Summarising what he saw as the principles in the authorities, Sir Anthony Clarke MR said this:

“34 … 4. The correct course for a person who appreciates that he is infringing the injunction when he learns of it is to apply to the court forthwith for an order varying or setting aside the injunction. On such an application the court should again apply the principles in the South Bucks case. 5. A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant's personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in the South Bucks and in the Mid Bedfordshire case.”

Finally, in Wychavon District Council v Rafferty [2006] EWCA Civ 628; [2006] 18 EG 150 the Court of Appeal upheld the judge’s decision not to vary an injunction. There the council had obtained a without notice injunction restraining Romany gypsies from stationing caravans on certain land. They subsequently applied for planning permission to use the land to have three mobile homes and several touring caravans. The application was refused and there was an appeal. Notwithstanding the injunction the caravans were moved onto the land and an application made to vary the injunction. The local authority successful applied for committal. It was said that the judge had erred in refusing to vary the injunction. The Court of Appeal held that Mid Bedfordshire v Brown applied and did not regard as perverse the judge’s decision that the planning appeal had no real prospect of success.

In terms of Sir Anthony Clarke MR’s summary of the principles in South Cambridgeshire District Council v Gammell, quoted above, Mr Beary cannot be said to have applied “forthwith” in terms of point 4 once he appreciated that he was infringing the injunction. Unfortunately he is illiterate, but when he received the injunction and accompanying letter in late November it is clear that someone had explained at least part of their import to him because on 1 December he took the initiative and rang Mrs White at the council. A fortnight later he had an interview with Mrs White and gave further details of his personal circumstances. Still nothing was done on his part to apply for a variation. It was when the application to commit was served on him in early January that he sought help from Mrs Heine. Her application was for planning permission for the site. It was only after the committal proceedings had come before a judge that an application to vary the terms of the injunction was made. While I can well appreciate the delays in obtaining legal assistance, and in making applications for legal aid, and while words in a judgment do not have the same force as a statutory provision, the implication of point 4 in Sir Anthony Clarke MR’s judgment in Gammell is that there should be immediate action. The policy reason for expedition is clear: persons in breach of a court order need to address the issue with the urgency that that situation demands.

Thus point 5 in the passage from Sir Anthony Clarke’s judgment in Gammell applies: the application to vary is governed by the principles set out not only in South Bucks District Council v Porter, but also in Mid Bedfordshire District Council v Brown. Certainly it is appropriate that the principles in South Bucks District Council v Porter have some purchase in a case like the present since at the time the injunction was issued, indeed at the time that the application to commit was authorised, there was no knowledge of Mr Beary and no consideration of his personal circumstances. Thus in considering the application to vary it is necessary for me to consider (1) planning issues, such as the planning merits, the planning history, including the length of unlawful occupation of the site, and the availability of suitable alternative sites; (2) the personal circumstances of the family, including the implications of Article 8 of the European Convention of Human Rights, and the consequences were the injunction to remain in its current form; and (3) the overarching public interest in ensuring that court orders are respected and obeyed.

As to the planning merits, Mr Willers has not persuaded me that there are real prospects that Mr Beary will succeed before the planning inspector. There are a series of hurdles which Mr Beary must surmount and I cannot be confident that he will do so. First, there are the green belt objections and whether there are the very special circumstances to justify a grant of planning permission. Mrs Heine’s statement puts heavy emphasis on the significant unmet need for gypsy and traveller sites in the area as part of her case on very special circumstances. That rests in part on circular 1/2006 and the pitch requirements imposed on the council by the regional strategy. Even if circular 1/2006 is still in force at the time of the appeal before the inspector, and even if the Localism Bill abolishing regional strategies has not been enacted at that point, the direction of travel given the Secretary of State’s clearly stated intentions is clear. That will be a material consideration in the determination of Mr Beary’s appeal, with the planning inspector having to calibrate the weight these factors should attract in accordance with what Sullivan LJ said in the Cala Homes case.

Once the regional strategy is abolished it will be up to the council to decide the general level of need to be met through its own development plan documents. The council’s intention is that it will not take enforcement action against existing long term residents at Wharf Road in the absence of alternative sites for them. It is undertaking a search for a site with some seven pitches elsewhere in the borough. One possibility which the March draft report suggests is a new site at Wharf Road, although there is the very strong objection by the Lea Valley Regional Park Authority to any such development, given its aspirations for the park. The council advances the not unreasonable contention that its approach is a legitimate and reasonable planning assessment which would be frustrated if empty plots at Wharf Road could be occupied by new gypsy and traveller households, who could obtain planning permission to remain until a new site elsewhere was allocated, since typically they would be able to raise analogous personal circumstances to Mr Beary.

Then there are the flooding issues. There is the disagreement about the risks to the site between Mr Walton, Mr Beary’s expert, and the Environment Agency, which the planning inspector will need to resolve on the appeal. There are situations where inspectors have granted planning permission, notwithstanding the breaches of PPS25, which does not allow caravans for permanent use in zone 3 flood plains. Thus Mr Beary will have to persuade the inspector that the site does not fall within the area of hazard contended for by the Environment Agency, alternatively that a state of affairs should be permitted which is regarded as unacceptably risky. Surmounting either of these hurdles casts further doubt on the reasonable prospects of Mr Beary’s case.

Even if the planning appeal does not have a real prospect of success, Mr Willers submits on Mr Beary’s behalf that it would be disproportionate not to vary the injunction. The effect otherwise would be to force his family to leave the land in the absence of an alternative site. That would bear heavily on him and his family. In particular Article 8 would be engaged. The position of Mr Beary’s children is strengthened by the recent decision of the Supreme Court to the effect that under the UN convention on the rights of the child their best interests must be a primary consideration in public policy making: Z H (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 WLR 148, [22]-[26].

A leading case is Chapman v United Kingdom (2001) 33 EHRR 18, where the European Court of Human Rights held that there was no breach of Article 8 where a gypsy who lived with her family on her own land was refused planning permission and subject to consequential enforcement notices. The court accepted that her occupation of a caravan was an integral part of her identity as a gypsy. Thus measures which affected its stationing had a wider impact than on the right to respect for her home, because they also affected her ability to maintain her identity and to lead her private and family life in accordance with her tradition. Since the refusal of planning permission and the enforcement measures constituted an interference with her right to respect for her private life, family life and home, the issue then became whether interference was proportionate under Article 8(2).

The court held that the fact of being a minority with a traditional life style different from the majority did not confer an immunity from general laws intended to safeguard assets common to the whole society such as the environment, albeit that this may have an impact on the manner in which such laws are to be implemented. It was however, a positive obligation on states to facilitate the gypsy way of life: [96]. The court did not accept the argument that because there is an unmet need for gypsy and traveller sites, the decision not to allow the applicant gypsy family to occupy land where they wished constituted a violation of Article 8. That would be tantamount to imposing on contracting states an obligation to make available an adequate number of suitably equipped sites. Article 8 did not give a right to be provided with a home. The court wisely noted that many people do not have adequate housing but that is a matter for political, not legal, action: [98]-[99]. The court continued:

“[102] …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”

Where there was no alternative accommodation available the interference was more serious than where there was: [103]. In the result the court was not persuaded that there were no alternatives available to the applicant besides remaining on the land in the green belt without planning permission.

In this case a primary consideration is the position of Mr Beary’s children. There is the disruption to their education should the family have to leave the site, the children having settled into their new school over the last year. There are also implications for their future health and safety should the family have to take to the road. In his witness statements Mr Beary speaks eloquently of the need for his children to obtain a better education than he did and of his concerns for their safety. Fortunately, there are no health issues. Apart from the position of the children there is the self evident interference with the home and family life were they to be obliged to move. But on the other side of the balance, in considering proportionality, are the planning laws and their enforcement. The passage quoted from Chapman underlines the very great weight given to the conscious defiance of the law when establishing ones home on an environmentally protected site, and that a person in that position cannot expect the courts to be quick in defending them. While Mr Beary’s conscious defiance of the law since he knew of the injunction cannot be visited on his children nonetheless, as Z H (Tanzania) made clear, their interest as a primary consideration does not mean that it cannot be outweighed by other factors in the balance so that interference with their Article 8 rights is proportionate.

That leads to the third point, which in my view is decisive as the final nail in Mr Beary’s case for a variation of the injunction. The fact is that there is properly in place an injunction prohibiting residential occupation of the site. To vary the injunction so as to permit the very action that it is designed to prevent would fail to acknowledge the force of the injunction. In Mid Bedfordshire District Council v Brown, South Cambridgeshire District Council v Gammell and Wychavon District Council v Rafferty the Court of Appeal has made clear that, where there is a continuing breach of an existing injunction, and the application is to vary it for the future, so as to allow a person to continue to do the very act which the injunction prohibits, the need to uphold the authority of the court is of overarching importance in the exercise of the court’s discretion.

Mr Willers submits that the facts of Mid Bedfordshire District Council v Brown aredistinguishable from those in the current case: there there were lies on the part of the travellers, a flagrant breach in going on to the land contrary to the injunction, apparent obfuscation on the part of the applicant for the variation, and a lack of apology to the court. In this case Mr Beary had been open and frank with the council, the council accept that he did not know of the injunction before moving on, his representatives had been diligent and Mr Beary has apologised to the court. In my view, however, although the facts of the present case may be distinguishable the crucial element is the principle which Mid Bedfordshire District Council v Brown establishes for the exercise of discretion by this court: the court should be slow to tolerate contempt of its orders, for to do so would diminish respect for them and undermine its authority.

Mr Beary’s breach of the injunction is fully acknowledged and he has apologised to the court for it. He has explained that he and his family have nowhere else to go and he would not have purchased the site or moved his family onto plot 19 if he had known about the injunction. On his behalf Mr Willers submits that the court should make no order, should adjourn sentence pending the determination of his outstanding planning appeal or should impose a fine, albeit that because Mr Beary’s earnings are limited any financial penalty would have to be modest, no more than £50 a month.

In support of the submission that no order should be made, Mr Willers invokes the decision of Sedley J in Guilford Borough Council v Smith, The Times, 18 May 1993, endorsed on appeal by the Court of Appeal: [1994] JPL 734. That decision requires close attention. At first instance Sedley J had held that only a deliberate or wilful contempt attracted imprisonment and that the failure to obey the injunction in that case could not be so described because it was accepted that the gypsies had nowhere else to go. The Court of Appeal held that Sedley J was wrong in that regard and that once a contempt was established imprisonment was a possible sanction. However, the Court of Appeal held that it was within the judge’s discretion not to impose a punitive order. Sedley J had said that if he were wrong in his legal conclusion he would exercise his power not to impose a punitive order, not even a suspended sentence. He pointed out, for example, that one of the respondents was a seventy year old widow who had only her old age pension and occasional donations from her family on which to survive. As Russell LJ put it, plainly the judge considered it unthinkable that such a person should be committed to prison. It was the exercise of discretion, in the light of the circumstances, which the Court of Appeal upheld. Thus the case is authority only for the rather obvious and limited point that a judge in considering committal must scrutinise carefully the particular circumstances of the instant case.

Mr Willers advances R v Newland [1987] JPL 851: (1987) 54 PCR 222 in support of his submission that sentencing ought to be adjourned pending the outcome of the planning appeal. That was an appeal to the Court of Appeal, Criminal Division, from a decision in the Crown Court where an appellant of gypsy stock had been fined for breach of an enforcement order. The judge concluded cursorily that her planning appeal was hopeless and simply designed to frustrate the local authority. By the time the matter reached the appellate court the appeal had been decided in her favour. The Court of Appeal held that the Crown Court judge had been wrong not to grant the application for an adjournment pending the inspector’s decision, which could have realistically been expected to be handed down within a matter of weeks. It held that the fine imposed was grossly excessive and substituted a much lower amount. The facts in Newland are clearly distinguishable from the present where the planning merits have been canvassed in some detail and the appeal outcome is some months away, perhaps after the beginning of the new school year. Adjournment, in this case, is not an option.

In this case the relevant circumstances at the centre of the case are those concerning Mr Beary’s children. Mr Beary has said that the family has nowhere else to go if they are forced to vacate the site. As I commented earlier there is an unfortunate lack of detail on where the children have been in the years immediately preceding their living at plot 19. It is said that this is not a case where Mr Beary has simply ignored the terms of the injunction and pressed on with development, or where he had dragged his feet. Once informed of the terms of the injunction, and the council’s decision to enforce its terms, he instructed Mrs Heine, who had in turn put him in contact with experienced solicitors. It is also submitted on Mr Beary’s behalf that the council have failed to consider whether there is less intrusive enforcement action than the application for committal.

In South Cambridgeshire District Council v Gammell the judge in one of the appeals had imposed a sentence of 28 days imprisonment, that sentence not to take effect if the caravans were removed within two months. There was no appeal from that to the Court of Appeal. In Wychavon District Council v Rafferty the judge had ordered committal to imprisonment for contempt for a period of six weeks but suspended it on condition that the caravans be removed within about a fortnight.

In all the circumstances of this case, and having given them the most anxious scrutiny, I have concluded that the council must succeed in its application. To impose the fine proposed by Mr Willers would not accord observance of the injunction the importance it deserves. In my view the appropriate sentence is the committal of Mr Beary to imprisonment for 28 days, that sentence not to take effect if he removes the caravans within 4 weeks from today. That period should give him time to remove the mobile home and caravan from the site and will enable the children to finish the school year at the local primary school.