Doncaster Metropolitan Borough Council v AC & Anor

This is a claim by Doncaster Metropolitan Borough Council (“the Council”). The Council is the local planning authority for an area which includes a site (which the Defendants call “Waterstone Lane”) covering approximately 0.4 hectares to the north of Moss Road, Askern, Doncaster. In this Judgment, I shall refer to this site as “the Waterstone Lane Site”, or simply as “the Site”. By this action, the Council seeks the grant of an injunction under the Town and Country Planning Act 1990 s 187(B) to restrain actual and apprehended breaches of planning control in relation to the Waterstone Lane Site. As I shall explain in more detail later in this Judgment, the Defendants to the Council’s claim are members of the Gypsy and Traveller communities, who are (variously) the present owners and occupiers of the Waterstone Lane Site.

Although this judgment is concerned with an application for an injunction under the Town and Country Planning Act 1990 s 187(B), it involves in certain sections a detailed discussion of the personal circumstances of six families who, between them, have 15 children (of whom 12 are under the age of 18). In my judgment, it is not in the best interests of these children for them to be publicly named or for them to be identifiable by anyone reading this judgment or any report of it. Since the children will be readily identifiable if their parents, the defendants to this application, are named, it is necessary that the adults involved also should not be named or be identifiable.

In exercise of my powers under CPR 39.2(4) and under the Children and Young Persons Act 1933 s 39, and having regard to the principles laid down in the cases of In re S (A Child) (Identification: Restrictions on Publication) (Footnote: ¹), and Re Guardian News and Media Ltd (Footnote: ²), I therefore direct that:

The Waterstone Lane Site is in the countryside, in the Green Belt surrounding Doncaster. From the 1950s until about 1997, it formed part of a larger waste water treatment works. However, in about 1997, that use ceased (though a small pumping station owned by Yorkshire Water remains on adjacent land to the North East of the Site). The Site was re-grassed and left as scrubland. In April 2009, the Site was bought from Yorkshire Water by the father of the AC, the First Defendant. AC’s father is a person who is well-known to the Council as a member of the Gypsy and Traveller community and as a leading advocate for their rights. In about July 2009, the Site was turned into a Gypsy and Traveller site, divided into six pitches. In March 2010, AC’s father sold the six parcels of land making up the Site to six of the Defendants. Eight of the defendants (including four of the owners) are currently living in caravans or mobile homes on the Site.

The defendants do not have (and have never had) planning permission for the use to which they are currently putting the Waterstone Lane Site. No planning permission was sought before the Site was turned into a Traveller site. A retrospective application for planning permission for that use was refused by the Council in January 2010, and appeals against that decision to the Secretary of State and then to the High Court were unsuccessful. The Council has issued an Enforcement Notice which has not been complied with, and has exercised its power under the Town and Country Planning Act 1990 s 70A to decline to determine fresh planning applications (for temporary permission for a reduced number of pitches) which were made in March and December this year.

The defendants, however, invite me to exercise my discretion to refuse to grant the injunction which the Council now seeks. They say that the Council (in breach of its duty under the Housing Act 2004 s 225 and the relevant guidance) has not made a realistic assessment of the need for Traveller sites in its area, and has consequently failed to provide sufficient deliverable sites to meet the need which exists. One practical consequence of that is that, if I grant an injunction to evict the occupants from the Waterstone Lane Site, they will have no alternative pitches to go to, and will end up living by the roadside. This, the defendants say, will have a seriously detrimental effect on them and their children, and will consequently involve a significant and unnecessary interference with their rights and those of their children under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The defendants argue that the grant of an injunction would be a disproportionate response to the breach of planning control involved in their continued use of the site, and would involve the Court not only in a breach of its own obligations under Article 8 and under Article 3(1) of the Convention on the Rights of the Child 1989, but also in lending the Court’s assistance to a breach by the Council of the Council’s obligations under the Children Act 2004 s 11. To the Council’s response that it has offered the defendants suitable alternative housing in an area of the Borough even closer to the schools presently attended by the defendants’ children, the defendants reply that it is unreasonable to expect them to exchange their traditional way of life for a life (even temporarily) in bricks and mortar housing.

The defendants support this case by asserting that, because circumstances have changed since the date of their original unsuccessful application, they now have a realistic prospect of obtaining the temporary planning permission for which they have recently attempted to apply. In that connection, the defendants have requested that, if I were not minded to refuse the Council’s application for an injunction outright, I should adjourn it to be heard at the same time as an application (which the defendants have told me that they propose to issue) for judicial review of the Council’s decision to decline to determine the defendants’ most recent planning application. The defendants say, in short, that I should permit them to stay where they are until such time as either they can regularise their position by obtaining planning permission for their present site, or they can move to pitches on another site or sites for which the Council has made planning permission available.

The factual background to this application (as I find it to be) is as follows. Over the weekend of 25^th and 26^th July 2009, services were laid at the Waterstone Lane Site, the Site was paved with hardcore, and fencing was put up. A central spine road was created, and the Site was sub-divided into 6 pitches, each separated by internal fencing. Families moved onto the Site and began to live there in caravans or mobile homes. The evidence before me does not state who carried out the building works, nor who were the people who went into occupation of the site at that time.

Two days later, on 28 July 2009, the Council sought and obtained from Owen J at a hearing without notice an injunction prohibiting use of any of the land surrounding the Waterstone Lane Site (other than the Site itself) for residential development or for the siting or caravans or mobile homes. The defendants named in that order were (1) AC’s father, (2) Christopher Tomkinson, (3) New Progress Housing Association, and (4) Persons Unknown. The purpose of this injunction was to prevent any expansion of the area that had already been occupied, without planning permission, for residential purposes. The injunction granted by Owen J is still in force.

On 19 August 2009, a retrospective application was made to the Council for planning permission to use the Waterstone Lane Site as a private Gypsy caravan site. The Planning Committee of the Council decided to refuse this application at its meeting on 12 January 2010. The reasons given in the Notice of Refusal dated 18^th January 2010 were that:

In the opinion of the Local Planning Authority, the harm caused to the Green Belt by reason of inappropriateness and visual harm is not outweighed by unmet need or any other material considerations and therefore no very special circumstances exist sufficient to justify planning permission even for a temporary period. The application is therefore contrary to Policies ENV3, PH 22 Doncaster Unitary Development Plan (Adopted 1998), PPG 2 Green Belts and Circular 01/2006

The statement in this notice that there were “no very special circumstances .. sufficient to justify planning permission” was a reference (inter alia) to the Planning Policy Guidance No 2 – Green Belts, issued in January 1995 and updated in March 2001 by the Department for Communities and Local Government (“PPG2”). Paragraph 3 of PPG2, which was the relevant guidance in force at the material time (and which was reflected in Policy ENV3 of the Doncaster Unitary Development Plan), stated that:

3.1

The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances.

3.2

Inappropriate development is, by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.

As the Court of Appeal held in Wychavon District Council v Secretary of State for Communities and Local Government (Footnote: ³):

The word “special” in the guidance connotes not a quantitative test, but a qualitative judgment as to the weight to be given to the particular factor for planning purposes. Thus, for example, respect for the home is in one sense a “commonplace”, in that it reflects an aspiration shared by most of humanity. But it is at the same time sufficiently “special” for it to be given protection as a fundamental right under the European Convention. Furthermore, Strasbourg case-law places particular emphasis on the special position of gypsies as a minority group, notwithstanding the wide margin of discretion left to member states in relation to planning policy ..

.. Against this background, it would be impossible .. to hold that the loss of a Gypsy family's home, with no immediate prospect of replacement, is incapable in law of being regarded as a “very special” factor for the purpose of the guidance. That, however, is far from saying that planning authorities are bound to regard this factor as sufficient in itself to justify the grant of permission in any case.

Planning permission having been refused, on 12 March 2010 the Council issued an Enforcement Notice. This was directed to the first nine of the present ten defendants, and to AC’s father (as the then owner of the Site). It required them, within three months from the date that the notice took effect, to stop using the Site as a Gypsy caravan site, and permanently to remove from the Site all caravans, structures, hard standings and materials associated with the unauthorised use. It also required them, within six months from the date that the notice took effect, to reinstate the Site to its original condition by levelling the ground and re-seeding it with grass.

Both the refusal of planning permission and the Enforcement Notice were the subject of appeals by six of the present defendants to the Secretary of State for Communities and Local Government. Wendy McKay, the Inspector appointed by the Secretary of State, held a hearing on 28 September 2010, and issued her report to the Secretary of State on 26 January 2011.

Ms McKay, in her full and careful report, first described the Site and its surroundings. She then set out the relevant planning policy considerations, and explained the planning history of the Site, before recording the cases put forward by the appellants, by the Council, and by interested parties (including the 3 councillors and 2 local residents who had attended the public inquiry, and the 188 people who wrote at the planning application stage to object to the proposed development).

At paragraph 90 of her report, she began the statement of her conclusions by identifying the nine main considerations that she proposed to take into account. These were as follows:

•

Whether the development would amount to inappropriate development in the Green Belt having regard to development plan policies and the advice set out in PPG2.

•

The effect on the openness and purposes of the Green Belt

•

The effect on the visual amenities of the Green Belt and the rural character and appearance of the surrounding countryside.

•

The unmet need for additional Gypsy sites.

•

The Development Plan policy background in relation to the provision of Gypsy and Traveller sites.

•

Whether suitable alternative sites are available for the occupiers of the site.

•

The personal needs and circumstances of the site occupants with particular regard to their health and educational, needs.

•

Human Rights.

•

If inappropriate development, whether there are any other material considerations that would clearly outweigh any harm resulting from these issues and thus justify the development on the basis of very special circumstances.

In relation to the first three of these considerations – the impact of the proposed development on the Green Belt - Ms McKay noted that:

[93] The countryside in this area is very flat and open. The development interrupts the sweeping flow of the landscape and in this topography results in a serious loss of openness of the Green Belt ..

[94] .. The development has a significant urbanising effect that materially detracts from the rural qualities of the locality ..

In her opinion, no amount of landscaping could cure this problem:

[96] The particular characteristics of this site are such that an acceptable scheme to ensure that the site is compatible with the rural character of this particular location could not be achieved by the imposition of landscaping conditions.

In consequence, Ms McKay concluded that:

[99] .. This development would unacceptably detract from the visual amenities of the Green Belt and the character and appearance of the surrounding rural area. These are factors to which I attach considerable weight.

As against this, Ms McKay accepted the appellants’ arguments in relation to the next four of these considerations. In relation to the fourth and fifth in her list of main considerations, she held that there was indeed an unmet need for additional Gypsy site provision within the Council’s area (and she rejected the Council’s evidence and arguments to the contrary). She also accepted the appellants’ argument that the Council’s then current development policy was deficient, in that it was not based upon any adequate quantitative assessment of the need for further Gypsy and Traveller sites, and as a result did not allocate the land which was needed for such sites. Consequently, in Ms McKay’s opinion:

[112] The existing unmet need in combination with the current deficiencies in the Development Plan policy background in relation to the provision of Gypsy and Traveller sites are material considerations in support of this appeal to which considerable weight can be attributed.

Ms McKay also accepted the appellants’ evidence in relation to the sixth of the main considerations which she had listed, the availability of suitable alternative sites. On that aspect of the appeal she concluded that:

[116] .. At present, there are no suitable alternative sites for the appellants to go to. It is unrealistic to expect them to be able to return to their former sites. If the enforcement notice is upheld, and they are evicted from the appeal site, it is likely that they would be living “on the road” and moving from one unauthorised location to another. The lack of availability of suitable alternative sites for the appellants is a matter to which a moderate amount of weight can be attributed.

As to the seventh consideration – the personal needs and circumstances of the site occupants – Ms McKay noted that there were (then) 12 children on the site, one of whom had special education needs and two of whom had a particular medical issue which had involved them in attending hospital.

[119] There is clearly a general benefit in all these families having a settled base from which to access educational amid medical services .. The appellants’ personal needs and circumstances are factors to which a moderate amount of weight can be attributed.

In relation to the eighth consideration – Human Rights - Ms McKay noted that the dismissal of the appellants’ appeals would most likely result in their eviction from their homes on the Site, thus interfering with their Article 8 rights. This interference was made the more serious by the lack of any suitable alternative site for them to go to.

However, taking all of these factors into consideration, Ms McKay’s overall conclusion was that the appellants’ appeals should be dismissed:

[133] I have considered all the various factors in support of this development, including the unmet need for Gypsy sites, the wider sustainability benefits, the unavailability of suitable alternative sites, the deficiencies of the current Development Plan policy provision for Gypsy and Traveller caravan sites in Doncaster, the personal needs and circumstances of the appellants and their families, the consequences for the families of the appeals being dismissed, discrimination and Human Rights considerations. However, on the particular facts of this case, the material considerations in support of the development do not, either on their own or in combination, clearly outweigh the harm to the Green Belt and the other harm identified. They do not amount to very special circumstances in the context of this case.

Ms McKay then went on to consider the appellants’ fall-back argument, which was that, if permanent permission were to be refused, they should nevertheless be granted temporary permission to remain on the Waterstone Lane Site for up to a further three years, to enable them to pursue the grant of planning permission for another (unspecified) site. She rejected this also, holding that:

[137] The harm resulting from a temporary planning permission would not endure permanently. However, this harm would be serious and would strongly outweigh all the other considerations despite the proposed temporary period ..

Even so, Ms McKay recommended that the period for compliance with the Enforcement Notice (which was suspended pending determination of the appeal) should be extended to 12 months (and to 15 months for the requirement to re-instate), so as to enable the appellants and their families to seek a suitable alternative site.

[140] There is, of course, no guarantee that a suitable alternative site would be found within the Borough or even a wider area within that timescale. However, the interests of the appellants and their families must be balanced against the harm to the Green Belt and the Countryside. Whilst I have taken their personal circumstances into account, I do not believe that any greater extension of the compliance period could be justified. I consider the extension of the compliance period to be a proportionate response that strikes a fair balance between the competing interests of the wider public interest and the individuals in this case. There would be no violation of the rights of the appellants and their families under Article 8 of the European Convention on Human Rights. I intend to recommend that the appeal on ground (g) should succeed to this limited extent.

After considering Ms McKay’s report, the Secretary of State for Communities and Local Government dismissed the appellants’ appeals by a decision letter dated 9March 2011. In essence, he agreed with the Inspector’s reasoning and conclusions and adopted her recommendations, both with regard to the dismissal of the appeals and with regard to the extension of the date for compliance with the Enforcement Notice.

[22] The Secretary of State agrees with the Inspector’s overall conclusions set out at IR130-137. He considers that the harm to the Green Belt by reason of the inappropriate nature of the development is a factor to which substantial weight must be given and that, in this case, there is additional harm to the openness, purposes and visual amenities of the Green Belt and to the character and appearance of the surrounding countryside (IR 131), These are all factors to which he has attributed considerable weight (IR131). Against these, the Secretary of State agrees that the immediate unmet need for additional Gypsy site provision in the Borough and the fact that the earliest date at which a DPD allocating suitable sites is likely to be adopted is some three years hence are factors of considerable weight in favour of the appeal (IR132). He also agrees that matters to which moderate weight in favour of the appeal should be attributed include the lack of alternative pitches; the benefits of the appellants having a settled base; and wider sustainability benefits (IR132).

[23] Overall, therefore, the Secretary of State concludes that the development is not in accordance with the development plan or national policy in PPG2 and that, on the particular facts of this case, the material considerations in favour of the development do not, either on their own or in combination, clearly outweigh the harm to the Green Belt and the other harm identified and do not amount to very special circumstances. He therefore concludes that [the appeals against the refusal of planning permission] should not be allowed and [that the appellants should not be] granted permanent planning permission.

[24] Furthermore, although the Secretary of State agrees with the Inspector that substantial weight must be given to the unmet need for Gypsy sites in considering whether a temporary planning permission is justified (IR135), he also agrees that, for the reasons given at IR137, although the harm resulting from a temporary planning permission would not endure permanently, it would still be serious and strongly outweigh all the other considerations (IR 137). He therefore agrees that the dismissal of this appeal accompanied by an appropriate extension of the compliance period for the enforcement notice would not have a disproportionate impact upon the appellants.

The Fifth Defendant in the present action, HI, appealed to the High Court against the decision of the Secretary of State to dismiss her appeal against the refusal of permanent planning permission. HI’s grounds of appeal related to the way in which the Secretary of State, in coming to his decision, had taken account of and had (it was alleged) failed to give appropriate weight to the provisions of Circular 01/2006 (Planning for Gypsy and Traveller Caravan Sites) and of paragraph 71 of Planning Policy Statement 3. In a judgment delivered on 16 March 2012 ([2012] EWHC 963 (Admin)), Ouseley J dismissed HI’s appeal, and refused permission for a further appeal.

Meanwhile, on 9 March 2012, the period for compliance with the requirements in the Enforcement Notice to stop using the Waterstone Lane Site as a Gypsy caravan site, and permanently to remove from the Site all caravans, structures, hard standings and materials associated with the unauthorised use – which had been extended to 12 months by the Secretary of State – had expired.

The defendants, however, did not comply with the requirements of the Enforcement Notice, but instead – also in March 2012 - made a renewed application to the Council for planning permission. This second application, like the first application made in August 2009, sought approval for the change of use of the land to a private Gypsy and Traveller site. However, it related only to part of the Waterstone Lane Site, and the number of plots for which permission was sought was reduced from six to three. Even so, the application made it clear that it was intended that all occupants of the Site would remain, simply doubling up to share the reduced number of plots.

On 30^th April 2012, the Council exercised its power under the Town and Country Planning Act 1990 s 70A to decline to determine this application, on the grounds that it was similar to the application dealt with by the Secretary of State in March 2011, and that there had been no significant changes in the relevant considerations since that time.

At its meeting on 10^th July 2012, the Council’s Planning Committee considered a joint report prepared by the Council’s Head of Development Management and by one of its Principal Legal Officers. That report gave an outline of the history of the matter, and drew attention, plot by plot and in detail, to the personal circumstances of the residents on the Site. It also drew the Committee’s attention to the fact that there were no alternative sites for the residents to move to (other than those which would involve them in living in bricks and mortar accommodation), and to the issues consequently arising under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and under the Equalities Act 2010.

The report noted that:

[13] On 14 May 2012 a letter was delivered to residents on the site requiring them to leave the site by 18 June 2012. This has not been complied with. [AC’s father] has advised the Council that residents will not be moving and to date there appear to have been no activities on site that indicate an intent to move.

[14] All the residents have been given application forms for Local Authority Residential Caravan Sites (attached), information on St Leger Homes Choice Based Lettings (CBL) and the housing register and how to apply. They were also given details of private sites in the borough and advised to contact them. No application forms have been returned to date, therefore none of the residents are currently eligible for local authority accommodation or pitches ..

[30]. .. There are no [Council] owned sites with vacant pitches available currently. Previous cases have shown that it is unlikely that any vacancies on private sites would be offered up to accommodate the residents. Officers have discussed options and another under-utilised private site, but significant investment is needed to bring it up to suitable standard and there is no programme to deliver this.

Having considered the options of taking direct action to evict the occupiers under the Town and Country Planning Act 1990 s 178, prosecuting the owners of the Site for offences under the s 179 of that Act, compulsorily purchasing the Site, or simply doing nothing, the report recommended that the most appropriate course for securing compliance with the Enforcement Notice was for the Council to seek a mandatory injunction from the High Court under s 187(B).

The Council’s Planning Committee accepted the recommendations of that report, and decided to begin the present proceedings. The Defendants were notified of this decision by letters dated 18th July 2012, which also invited them to contact the Council’s Housing Options Team.

The present proceedings were begun on 29 August 2012 by the issue of a CPR Part 8 Claim Form and an Application Notice. They were supported by the First Witness Statement of Gareth Stent, a Team Leader in the Planning Department of the Council. Further evidence on behalf of the Council was thereafter submitted to the Court in Mr Stent’s Second Witness Statement dated 30 November 2012 and in a Witness Statement dated 3^rd December 2012 from Karen Wilcock, a Senior Housing Options Officer in the Regeneration and Environment Department of the Council.

The evidence submitted to the Court on behalf of the defendants consisted primarily of witness statements from the First, Second, Fifth, and Seventh Defendants, and from AC’s father. It also included both a report dated 8^th November 2012 on the health needs of the defendants and their families from Carol-Jo Crowley, a registered nurse with significant experience of work with Gypsies and Travellers, and a lengthy report dated 16^th November 2012 from Dr Angus Murdock, a Chartered Town Planner with significant experience of planning applications on behalf of Gypsies and Travellers. Dr Murdoch’s report was directed primarily towards the Defendants’ likely prospects of success in obtaining temporary planning permission for the site, despite the fate of their earlier applications. Dr Murdoch had been the appellants’ representative in connection with their unsuccessful appeal to the Secretary of State against that refusal.

Dr Murdoch’s report stated that a renewed application for temporary planning permission was going to be made to the Council in relation to the Site. That application (which, except for the fact that the permission sought was expressed to be temporary only, was materially identical to the application submitted in March 2012) was submitted to the Council on 5^th December 2012. By a written Officer Decision dated 14^th December 2012, the Council again exercised its power under the Town and Country Planning Act 1990 s 70A to decline to determine this application, on the grounds that it was similar to the application dealt with by the Secretary of State in March 2011, and that there had been no significant changes in the relevant considerations since that time.

That was the position when the matter came before me for hearing on 17 and 20 December 2012.

In the course of that hearing, Mr Masters (who appeared for the defendants) made an offer on behalf of his clients to the effect that, if the Council were to agree to permit the Defendants to move to what Mr Masters contended was an available empty site at Gibbons Lane, the Defendants would (subject to agreeing detailed terms) be prepared to give an undertaking to the Court to leave the Waterstone Lane Site straightaway, and thereafter to leave the Gibbons Lane Site within an agreed period. The proposal that the defendants should be permitted to move to the Gibbons Lane site was not new, having been set out in AC’s father’s witness statement. However, the offer of an undertaking to leave Gibbons Lane after an agreed period was a new factor, about which Ms Sheikh (who represented the Council at the hearing) understandably needed to take instructions.

On the evening of Sunday 23 December 2012, the Council sent to me by email some 10 pages of further written submissions, accompanied by copies of two further authorities, and a witness statement from Tracey Harwood, the Council’s Interim Assistant Director (Strategic Housing) Regeneration and Environment, setting out the Council’s position in relation to the Gibbons Lane site. On 11 January 2013, the defendants’ solicitor sent to me, in response, a witness statement from Alison Heine. Ms Heine states, in her witness statement, that she is a Member of the Royal Town Planning Institute, with extensive experience of Gypsy-Traveller planning work. Her witness statement is largely concerned with a report of her observations during a visit which she made to the Gibbons Lane site on Monday 7^th January, and with comments on Ms Harwood’s witness statement. However, on Monday 14 January, the defendants’ solicitor sent to me two further witness statements on which the defendants also wished to rely. The first was a second witness statement from AC’s father. This witness statement responded to the evidence contained in Mr Stent’s second witness statement, which had been served on 3^rd December 2012, well prior to the hearing. It was not responsive to Ms Harwood’s witness statement. The second piece of new material was a witness statement from Stuart Hardwicke Carruthers. According to Mr Carruthers’ witness statement, Mr Carruthers runs an organisation called “Carta Cooperative Developers”, which was asked on 2 January 2013 if they would be prepared to support the defendants in developing the Gibbons Lane Site as a cooperative. This witness statement, also, is not truly responsive to Ms Harwood’s witness statement, but rather deals with an initiative which the defendants had only taken up after the conclusion of the hearing before me.

This exchange of significant further evidence after the conclusion of a hearing is unconventional, and not something that I had expected or invited. Fortunately, no injustice to either side or appreciable delay has in fact resulted from it. Because my decision on this application may materially affect the welfare of the defendants’ children, I have decided, exceptionally, to take all of this further material into account, and both sides appear to be content that I should do so. However, the unusual course taken in this particular case should not be regarded as setting a precedent to be followed in other hearings.

The present owners and occupiers of the Waterstone Lane Site are as follows.

Plot 1 and the land which forms the spine road of the Site are both owned by the Tenth Defendant, PQ. PQ does not live on the Site. Plot 1 is, instead, occupied by the First Defendant, AC, and the Second Defendant, BC. They have one child, a baby born in September 2012. AC states in his witness statement that he has “always lived in a caravan. It is my way of life and is very important to me”. By contrast, BC grew up in a bricks and mortar house, and only began living in a caravan when she set up home with AC. Even so, she states in her witness statement that

.. It is very important to me to support my husband and I know that he could not live in a house because living in a caravan is his way of life. I do not think people realise how difficult it would be for [AC] to have to move to live in a house ..

At [the Waterstone Lane Site] I feel really safe and get on with the other residents. It’s great to have so much support. If we were evicted, we would have to live on the side of the road because I do not know where else we could go. This really upsets me and I would be worried about my child. It would be very difficult to try and bring up a baby on the side of the road ..

I would also worry that this would mean that I had to give up my job ..

If we were forced on to the side of the road I would worry that we would not be able to carry on going to th[e] doctor [with whom I and my baby are currently registered] because you normally have to live within a certain area ..

Plot 2 is owned and usually occupied by the Third Defendant, DE and her family. She has four children, two girls aged 19 and 20 (one of whom has recently married), and two boys aged 13 and 18. DE was abroad and not resident on site at the time of Karen Wilcock’s visit on 29^th November 2012. However, Ms Wilcock was informed that DE intended to return before Christmas.

Plot 3 is owned and usually occupied by the Fourth Defendant, FG, and her three children aged 7, 11 and 13. At the time of Ms Wilcock’s visit on 29^th November 2012, FG was not resident on site. Ms Wilcock was informed that FG was away caring for her mother and grandmother, but intended in due course to return.

Plot 4 is owned and occupied by the Fifth Defendant, HI, and her 4 children aged 9 months, 4, 7 and 9. The eldest of these children has a misaligned jaw, and suffers from problems with her ears. The boy aged 4 suffers from asthma. In her Witness Statement, HI states that, if she were evicted from the site, she would have nowhere else to go, and it would therefore have a severe impact on her and her family:

I have lived in the area for a long time and have support from family and friends. If we were evicted I would end up living on the side of the road. This is the last thing I want for my children .. If we were evicted then my children would have to leave school because it would be impossible for me to get them to school if we were living on the side of the road ..

I would be heartbroken if my family and I were evicted from [the Waterstone Lane Site]. It is a nice site with access to water and electricity. I feel safe on the site and it allows my chi1dren to have access to school and doctors. I have never lived in a house and have always lived the traditional way of life and it is unreasonable to expect me to stop living my traditional way of life because the [Council] cannot supply sufficient pitches for me and my family.

Plot 5 is owned by the Sixth Defendant, JL. He and the Seventh Defendant, KL, are separated, and JL no longer lives at the Waterstone Lane Site. However, KL still lives on Plot 5, with their three children, aged 2, 4 and 8. The two year old suffers from asthma. Like DE and HI, KL testifies in her witness statement about the severe impact which being evicted from the Site would have on her and her family. She refers (inter alia) to a kidney problem that she has, which would make life “on the road” especially difficult for her, and to the specific difficulties which her children would face, and says:

I have lived in the area for a number of years and have a close support network. If we were evicted we would end up living on the side of the road. This is the last thing I want for my children .. When I was growing up we often had to live on the side of the road and it was terrible .. If we had to live on the roadside there would be no way I could continue to send [my children] to school ..

I have never lived in a house and have always lived the traditional way of life and it is unreasonable to expect me to stop living my traditional way of life because the [Council] cannot supply sufficient pitches for me and my family ..

Plot 6 is owned by the Eighth Defendant, MO. He and the Ninth Defendant, NO, live there. They have no children.

The Council’s application is made under the Town and Country Planning Act 1990 s 187(B). Section 187B (1) and (2) is in the following terms:

(1)

Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.

(2)

On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.

It is established by the decision of the House of Lords in the leading case of South Bucks DC v Porter (Footnote: ⁴) that section 187B confers upon the Court an original and discretionary jurisdiction, which is to be exercised taking into account all of the relevant circumstances (Footnote: ⁵). I gratefully adopt the summary of the principles laid down in that case which was given by Auld LJ at paragraphs [34] and [37] of his judgment (with which Arden and Jacob LJJ agreed) in Davis v Tonbridge and Malling Borough Council (Footnote: ⁶):

[34] .. 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.

..

[37] 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.”

Sir Anthony Clarke MR (as he then was) put the matter in this way in paragraphs [8] to [10] of his judgment (with which Rix and Moore-Bick LJJ agreed) in the later case of South Cambridgeshire DC v Gammell (Footnote: ⁷):

[8] .. 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.

[9] Article 8(1) of the convention is entitled 'Right to respect for private and family life' and provides: 'Everyone has the right to respect for his private and family life, his home and his correspondence.' Article 8(2) contains the familiar exception^[ (Footnote: ⁸)^].

[10] It is important to note that, in each of the cases before the House of Lords, when the injunction was granted the respondent was in occupation of mobile homes or caravans in breach of planning law. As I read the speeches of the Appellate Committee, they endorsed the approach of Simon Brown LJ in the Court of Appeal. Lord Bingham of Cornhill (at [20]) set out paras [38]–[42] of Simon Brown LJ's judgment and approved them. I refer only to what Simon Brown LJ said in paras [41] and [42] of his judgment, which included the following:

'[41] True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be “commensurate”—in today's language, proportionate .. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought—here the safeguarding of the environment—but also that it does not impose an excessive burden on the individual whose private interests—here the gipsy's private life and home and the retention of his ethnic identity—are at stake.

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

In each of the appeals the matter was remitted to the judge to carry out that balancing exercise.

It is that difficult balancing exercise which I am required to carry out in deciding whether, as a matter of discretion, to grant injunctive relief to the Council in the present case. In setting out to do so, I remind myself (as Sedley J observed, in R v Lincolnshire County Council, ex parte Atkinson (Footnote: ⁹)) that “the need for shelter with at least a modicum of security” is “one of the most fundamental human needs”. I also remind myself of Lord Bingham’s characteristically humane remark in the South Bucks case (Footnote: ¹⁰), that

.. there is force in the observation attributed to Václav Havel, no doubt informed by the dire experience of central Europe: 'The Gypsies are a litmus test not of democracy but of civil society'

The following factors tell in favour of the grant of the injunction sought by the Council. First, on the evidence before me, the Waterstone Lane Site is not in planning terms a suitable location for a Gypsy or Traveller site. That was the clear conclusion of the Secretary of State (acting on the advice of his Inspector, Ms McKay), who held that this encampment detracts unacceptably from the visual amenities of the Green Belt and the character and appearance of the surrounding rural area, and that, on the particular facts of this case, the material considerations in favour of the development do not, either on their own or in combination, clearly outweigh the factors against it. Ouseley J has already decided, in dismissing Ms Smith’s appeal, that the Secretary of State made no error of law in coming to his decision: and there is nothing whatsoever in the material which I have seen which would cause me to question in any way the correctness of the Council’s and the Secretary of State’s decision with regard to the suitability on planning grounds of this particular location for a Gypsy or Traveller site.

Dr Murdoch does not seriously challenge that conclusion in his report. Rather he seeks to argue (at paragraphs 38 and 50 of his report) that the harm caused by this otherwise inappropriate development has been mitigated by landscaping (which has grown and mellowed since the date of the Inspector’s report) to the extent that, in considering whether temporary (rather than permanent) permission should be granted, that harm (because temporary) should now be considered to be outweighed by the other material considerations. I shall return to that aspect of the case later in this Judgment.

The second factor in favour of the grant of the injunction is the fact that, at all times since 9 March 2012 (when the extended period for compliance with the Enforcement Notice expired), the continued use of the Waterstone Lane Site as a Gypsy caravan site has involved the commission of criminal offences, both under the Town and Country Planning Act 1990 s 179(2) by those of the defendants who are owners of the land, and under s 179(5) of that Act by such of the other defendants as, although not themselves owners, have control of or an interest in the land.

Mr Masters, on behalf of the defendants, argued that those of his clients who were owners of the land would be entitled to defend any prosecution alleging the commission of such an offence by relying on s 179(3). That subsection provides that “it shall be a defence [for the owner of the land] to show that he did everything that he could be expected to do to secure compliance with the notice”. Mr Masters further submitted, in reliance (inter alia) upon the case of R v Wood (Footnote: ¹¹), that the question of whether that defence was made out was an issue which his clients were entitled to have decided by a jury rather than by me. Such a jury might (Mr Masters asserted) come to the view that the defendants had indeed done everything that they could reasonably be expected to do by way of compliance, given the Council’s failure to designate any sufficient land for Gypsy and Traveller sites, and the consequent lack of any alternative sites for the defendants to go to. Accordingly, unless and until that issue had been considered (and that potential defence had been rejected) by a jury, I should not assume that any offence under s 179 has been committed.

In my judgment, Ms Sheikh on behalf of the Council was right to submit that that argument is misconceived. It is well-established by a line of cases (of which R v Wood forms part), including Kent County Council v Brockman (Footnote: ¹²); R v Beard (Footnote: ¹³); R v Clarke (Footnote: ¹⁴); Wycombe DC v Wells (Footnote: ¹⁵); and Sevenoaks DC v Harber (Footnote: ¹⁶), that the only issue under s 179(3) is whether it is within the power of the owner of the land to comply with the notice without the assistance of others. That subsection is concerned only with the issue of the owner’s ability to comply, not with the wider issue of whether there is a reasonable excuse for non-compliance, such as the lack of an alternative site or hardship in having to leave their home. As Hobhouse J stated, giving the judgment of the Court in R v Beard (Footnote: ¹⁷)

.. Where it is within the power of the owner of the land to comply with the [Enforcement Notice] without the assistance of others, no question of a defence under sub-section (3) arises. Before a defence can arise under that subsection, the owner must show that compliance with the notice is not within his own unaided powers, otherwise no question of his having to secure compliance with the notice can arise

That position is unaffected by the Human Rights Act 1998. As the European Court of Human Rights held, in ruling inadmissible the complaint of another Gypsy, Mr Jesse Wells, that the law as stated in Beard and as applied by Newman J in Wycombe DC v Wells violated (inter alia) Mr Wells’ Article 8 rights:

.. [T]he High Court ruling that it was no defence, at the stage of enforcement, to rely upon the apparent lack of other alternative sites for caravans in the vicinity does not in the circumstances disclose any arbitrary or disproportionate response .. [T]here is no appearance of a violation of Art 8 in the approach adopted by the High Court .. (Footnote: ¹⁸)

In the present case, it is clear as a matter of fact that the defendants are physically able to leave the Waterstone Lane Site with their families, and to cease using the Site for residential purposes. They require no assistance to achieve that. It is accordingly equally clear, as a matter of law, that they could have no defence under s 179(3) on the basis put forward by Mr Masters to a prosecution brought against them under s 179(2).

The third factor is that there is no other (or, at least, no other more suitable) means by which compliance with the Enforcement Notice can effectively be secured. The defendants have made it clear that they do not intend to leave the Waterstone Lane Site unless compelled to do so. Unless I make an order requiring the defendants to leave the Site (or the Council takes direct action under s 178), the defendants’ illegal conduct is likely to continue for an indefinite period.

The first factor which tells against the grant of any injunction to evict those of the defendants who are currently living on the Waterston Lane Site is that the Site is their home, and has been so for about three and a half years. There are six families living on the Site, whose lives will be very significantly disrupted (and who will suffer a significant interference with their rights under Article 8) if they are required to move.

The second factor is that the presence of the defendants on the Site is either as owners themselves, or with the permission of the owners of the land. This is their own property. No question of trespass to the Council’s land or to the land of any third party is involved (Footnote: ¹⁹).

The third factor is that there are no suitable alternative sites for the defendants to go to.

The Council has sought to deal with this factor by offering bricks and mortar accommodation to the defendants from within its available housing stock. Tracey Harwood’s witness statement identifies five 3-bed houses and one 2-bed house that the Council is holding for the Defendants. As she points out, the schools currently attended by the children on the Site are either in Bentley or Askern. One of the properties on offer is in the village of Bentley, and the others are no more than 4.6 miles from Bentley. The distance from Askern of the various properties varies from 4.8 to 6.2 miles. On this basis, Ms Harwood states that:

[12] .. In the present circumstances and having regard to all relevant considerations and the length of time the defendants would be expected to stay in it, it is considered [that] the provision of [this] housing .. discharges the Council duty and is reasonable .. at present [the Council] does not have any pitches immediately available to provide and is aware that suitable accommodation does not mean that the Council must supply pitches to the proposed occupants.

If the defendants are evicted from the Waterstone Lane Site, they are likely therefore to be faced with the stark choice, at least in the immediate future, between a life “on the road” (or in some other unauthorised place) or a life in bricks and mortar accommodation. Having regard to the terms of the witness statements which have been served on the defendants’ behalf, it is in my judgment more likely than not that all (or at least the majority) of the defendants will opt for a life (at least in the short term) “on the road” rather than for bricks and mortar. As the European Court of Human Rights noted in Chapman v United Kingdom (Footnote: ²⁰):

.. the applicant's occupation of her caravan is an integral part of her ethnic identity as a gipsy, 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 from their own volition, many gipsies 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 which affect the applicant's stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identity as a gipsy and to lead her private and family life in accordance with that tradition ..

Mr Masters submits that a further factor which militates against the grant of an injunction is the fact that the absence of suitable alternative sites is (at least in part) the result of the failure of the Council to carry out an adequate assessment of the need for Gypsy and Traveller sites within its area and/or to allocate land as suitable for that use. In that connection, he relies upon Dr Murdoch’s Report, which annexes reports from Planning Inspectors appointed to consider appeals in relation to other sites. These refer in various places to the existence of a significant unmet need in the Council’s area for such sites, and to deficiencies in the Council’s assessment of the extent of that need, and consequently in its policies for dealing with it.

These findings in relation to appeals by different parties in relation to different sites are probably inadmissible as evidence against the Council: see eg Three Rivers DC v Bank of England (No 3) (Footnote: ²¹). However, Ms Sheikh did not object to my looking at them, Dr Murdoch’s report relies upon them primarily as reinforcement for his own expert views, and the Council did not seriously challenge the similar assessment of the situation made by Ms McKay (quoted in paragraph 19 above) in the report which she prepared for the Secretary of State concerning the present site. In the circumstances, it seems to me that this further factor is sufficiently established by the evidence, and is one that I can and should take into account in the defendants’ favour.

Mr Masters is also right to submit that the presence of so many children on this site is a fifth, and highly material, factor. Paragraph 5.2 of Ms Crowley’s nursing report draws attention to the probable adverse consequences for the health and well-being of these children, should their parents be evicted from the Site and thereafter chose to live at the side of the road rather than in bricks and mortar. Her evidence concerning the especially vulnerable position of Gypsy children is reinforced by the stark findings contained in the April 2012 Progress Report by the Ministerial Working Group on Tackling Inequalities Experienced by Gypsies and Travellers, produced by the Department for Communities and Local Government, which records that:

[2.1] At present, Gypsy and Roma pupils, along with pupils of Irish Traveller heritage, are amongst the lowest-achieving groups at every Key Stage of education, although individual pupils can and do achieve very well. In 2011, just 25% of Gypsy, Roma and Traveller pupils achieved national expectations in English and mathematics at the end of their primary education, compared with 74% of all pupils. At the end of secondary education, just 12% of Gypsy, Roma and Traveller pupils achieved five or more good GCSEs, including English and mathematics, compared with 58.2% of all pupils ..

[2.6] In addition to generally low attendance, Gypsy, Roma and Traveller pupils also have the highest levels of permanent and fixed term exclusions when compared to other minority ethnic groups and to pupils entitled to Free School Meals.

In Re ZH (Tanzania) (Footnote: ²²), Lady Hale (with whom Lord Brown and Lord Mance concurred) drew attention to the fact that

.. the most relevant national and international obligation of the UK is contained in art 3(1) of the UNCRC:

'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children.

The Council is a public body on whom the duty under s 11 falls. However, it is also the duty of this Court to give effect to the UK’s obligation under Art 3(1).

The case of Re ZH was drawn to the attention of Cox J in the recent case of Moore v Secretary of State for Communities and Local Government (Footnote: ²³). In that case, Ms Moore sought an order quashing the inspector’s decision to refuse her appeal against the London Borough of Bromley’s refusal to grant Ms Moore planning permission for a change of use of certain land from equestrian to a one-pitch private Gypsy caravan site. Cox J allowed Ms Moore’s appeal in part, and quashed the inspector’s decision to the extent that it related to Ms Moore’s application for temporary permission.

In paragraphs [72] to [74] of her judgment, Cox J said this:

[72] In the balancing exercise carried out (at paras 32-33) in relation to the qualified rights identified under art 8, the inspector emphasised the legitimate aim of protecting the environment and the Green Belt and concluded that the harm caused by inappropriate development and the other identified harm was not clearly outweighed by the other material circumstances. However, Mr Cottle's challenge under this head is not to the balancing exercise carried out in relation to permanent planning permission.

[73] For the reasons set out above, I accept his submission that the nature of that balancing exercise changed when the inspector considered the grant of a temporary permission. Further, in this case, the vulnerable position of Gypsies generally and the need for special consideration to be given to their needs, to which Carnwath LJ referred in Wychavon, had a particular focus when considering temporary permission for this Claimant. In addition to her status as a single Gypsy mother with three young children, she was a person with compelling health needs, for whom the consequences of refusal of a temporary planning permission were potentially extremely serious.

[74] In circumstances where no alternative sites were available, or likely to become available in the foreseeable future; where injunction proceedings for immediate eviction had already been started; where the inspector found that the Claimant and her children would probably have to leave the site if permission were refused; where there was a recognised risk that the Claimant and her children, once evicted, would have to resort to roadside existence, which would harm the Claimant's health and cause serious harm to the quality of life of the Claimant and her children; and where there was no evidence that the Claimant, once evicted, would in fact be offered a pitch on one of the Council-run sites or indeed anywhere else in the area, the decision that the other material considerations in this case were not sufficient to clearly outweigh the identified harm and to justify the grant of temporary permission was, in my judgment, irrational.

Mr Masters relied strongly upon these passages, and submitted that Moore was authority for the proposition that any decision to evict the defendants, whose position was no less vulnerable than that of Ms Moore, would necessarily be irrational.

In my judgment, Mr Masters’ submissions overstate the position. The balancing exercise which the planning authorities and the Court are independently required to carry out in cases such as the present is a difficult one, and its result will usually depend upon a detailed consideration of the particular facts of the individual case concerned. When read in context, Cox J’s observations in Moore were plainly directed to the particular facts of the case before her. She was not purporting to lay down an invariable general principle that, in every case where children are involved, it will be irrational for the planning authorities or the Court to evict a Gypsy family from an unauthorised site, unless and until there is an available alternative site to which they can move.

In any event, any such invariable general principle would be inconsistent with Chapman. It would also be inconsistent with the approach taken and decisions made in cases such as R v Basildon DC ex parte Sheridan (Footnote: ²⁴)(which was referred to with apparent approval by Cox J in paragraph 76 of her judgment). Sheridan was a case involving an unauthorised site which had been set up and occupied by families of Irish Travellers. The site with which that case was concerned had been established for some 9 years. The principal applicant, Ms Sheridan – like Ms Moore, in the case before Cox J - had significant health problems, which the evidence suggested would be exacerbated if she were to be compelled to leave the site. Children were involved, including some with special needs, and Ouseley J had, like Cox J in Moore, to consider the effect of the decision in Re ZH. He nevertheless refused to interfere with the defendant council’s decision to take direct action under s 178 to clear the site.

Even so, cases such as Moore illustrate the importance, for the balancing exercise in cases such as this, of a proper consideration of the effect of any order on the welfare of the children whose homes are on the Site.

The final consideration which Mr Masters urged on me against the grant of an injunction was the fact that the defendants had now accepted that they could only stay temporarily on the Waterstone Lane Site, so that the environmental detriments caused by their ongoing occupation of the site would continue only for a limited period.

Mr Masters put forward three possible timescales. First, he argued that the Council’s planning policy is currently evolving in response to the guidance contained in the Department for Communities and Local Government’s April 2012 Planning Policy for Traveller Sites. According to the evidence filed by Mr McKone on behalf of the Council in connection with an appeal relating to a site at Flashley Carr Lane, the Council expects to adopt a new policy on gypsies and Travellers in about March 2014, which will

.. draw upon the most up-to-date available evidence of Gypsy and Traveller Accommodation Needs and will identify specific sites to at least meet the five-year deliverable pitch requirement based on that evidence. The Publication version will therefore set out an updated five-year need figure and may set out alternative and additional sites based on the latest evidence of deliverable opportunities ..

In Mr Masters’ submission, once this policy has been adopted (Footnote: ²⁵), it will be possible for site owners to obtain planning permission for new sites, which would then be likely to provide suitable alternative accommodation to which the defendants could move in about 2015 or 2016.

However, Mr Masters also argued – again on the basis of Mr McKone’s evidence, as amplified and explained by Dr Murdoch – that it was possible for the defendants’ need for an alternative site to be met in a much shorter time frame. He drew attention to paragraph 7.2 of Mr McKone’s evidence, where Mr McKone stated that:

.. The Council sites at White Towers, Armthorpe and Lands End Road, Thorne are to be extended. Homes and Communities Agency (HCA) funding, in the sum of £1.44m, has been secured. This will deliver 16 new pitches. Planning permissions have been previously granted though now lapsed. Fresh applications can be determined in accordance with Core Strategy Policy CS13. Development is due to commence in March 2013. Those Gypsy and Traveller site allocations within the UDP that are not used or are under-used for Gypsy and Traveller occupation can be brought forward as Gypsy and Traveller sites without the need for planning permissions (except possibly for new amenity blocks). The site at Dunscroft, for example, which had for a number of years been used for non-Travellers has recently become vacant and the owners have expressed an interest in returning it to use as a Gypsy and Traveller site (15 pitches) and even extending it ..

Mr Masters also drew attention to paragraph 7.2 of Mr McKone’s evidence. That paragraph relates to the Gibbons Lane site, and states that:

.. It has been agreed to dispose of the Council’s former Traveller transit site at Gibbon Lane, Thorne to a member or members of the travelling community for development as a private site for 10 pitches. As an existing site this does not require the principle of development to be established although there would need to be new amenity blocks which would require planning permission

Dr Murdoch’s evidence (which is supported by the evidence of Ms Heine and Mr Caruthers) is that, if the Council so chose, the Gibbons Lane site could be sold to the defendants (or to someone connected with the defendants), and could be ready for occupation by them following completion of any necessary works at some point in 2014. However, as Mr Stent points out on behalf of the Council in his second witness statement:

[4] .. The Council is required to secure best value and go through appropriate procurement procedures and therefore the timescale for final decision making on this site is not imminent ..

Mr Stent also notes that the timescales for the sites at Armthorpe and Thorne are still uncertain.

Mr Masters’ third and final suggestion was that the defendants could move to Gibbons Lane straight away, if only the Council would co-operate. In paragraph 12 of his first witness statement, AC’s father had suggested that, as the Gibbons Lane site was a transit site, it

.. could solve the problem temporarily at least if the council could let the residents stay on Gibbons Lane while they try to sell it to avoid the residents being evicted to the side of the road ..

It was this suggestion that Mr Masters, on behalf of the defendants, had sought to make more attractive to the Council by the offer of an undertaking to leave Gibbons Lane as soon as it was sold (assuming that it was not sold to the defendants themselves, or to someone on their behalf).

Ms Harwood’s post-hearing evidence on behalf of the Council was directed towards explaining why this suggestion was not acceptable. According to Ms Harwood:

[6] .. The [Gibbons Lane] site is in a poor and dangerous condition and it is not safe for occupation by families and children. As a minimum, the Council would need to make safe the vandalised building on site, reinstate the electricity and water supply, install a septic tank, erect suitable fencing, clear fly tipping and other debris from the site and deal with the problem of raw sewage which is evident on site. Our current estimate for the works is £192,050.00 .. This estimate does not include for the provision of hot water or showers and I am concerned that having a site that is serviced by cold water only could constitute a Category 1 hazard within the meaning of the Housing Act 2004. Having regard to all relevant considerations and the Council’s duties as a housing authority, I can only conclude that Gibbons Lane does not constitute an appropriate option as proposed by the Defendants.

[7] As I have stated, there is no budget at present for these works and, most importantly the Council has a duty to ensure that any accommodation provided to the Gypsies and Travellers on Moss Road is suitable ..

Ms Heine, in her responsive witness statement served on behalf of the defendants, disputed this, and stated that, in her opinion:

[4.4] .. a group of Travellers could move straight onto this site and take up occupancy immediately. They would need to be provided with portaloos and skips/refuse bins for rubbish, etc. Sections of the boundary fence would need to be repaired but this would be a simple job. The families could provide their own generators until electricity was re-connected and made safe. I am unaware of any reason why services could not be reconnected. I note that the Council consider it necessary to install a septic tank. I am unclear what arrangements were in place originally but would find it surprising that no septic tank existed on this site, in any event, depending on the type of portaloos provided these can come with their own tank emptying facilities and arrangements would only be needed to take away the full tanks ..

[4.5] The Council has listed the cost to make the site safe and suitable. It would not take anyone very long to remove the small earth bund at the entrance and clear the small amount of rubbish from the site. I cannot comment on the other costs but am surprised by the figure quoted for connecting to the electricity and installing a septic tank, these figures appear excessive.

It seems to me that these two contrasting positions well illustrate an aspect of the cultural difference between the approach of the defendants and that of the Council. I can readily understand why, on the part of the defendants, a degree of “make-do and mend” is taken for granted, and why the approach of the Council to the defendants’ proposals in relation to the Gibbons Lane site is seen by them as unnecessarily formalistic and bureaucratic. However, I can also well understand why the Council – mindful of its statutory obligations to secure best value and to go through appropriate procurement procedures, its many other statutory and common-law obligations, including those under the Housing Act and as an occupier and potential landlord of the site, and its obligations to its insurers – would be reluctant to take responsibility for the defendants at the Gibbons Lane site, unless and until that site had been properly and thoroughly brought up to an suitable standard. Neither position strikes me as unreasonable, looked at purely from the standpoint of the party concerned.

For the purposes of this application, I have to take into account the reality, which is that the Gibbons Lane site is not in practice immediately available for the defendants to occupy as an alternative to the Waterstone Lane Site. The Council, which owns the Site, is not prepared to have them there yet, and on the evidence available to me I cannot say that its decision is one which no reasonable Council, properly directing itself as to its duties, could have reached. I am prepared to accept that it is possible, if matters work out in the way that the defendants hope, that the Gibbons Lane site (or some other lawful site) might become available to the defendants as an alternative site before the end of 2013. However, it is also possible (and, on balance, perhaps more likely) that it will take considerably longer than that before the defendants are in practice able to find a suitable, and lawful, alternative site.

Mr Masters also suggested that, even if the longest of these three timescales were the one involved, his clients now had a realistic possibility of obtaining temporary planning permission to remain on the Waterstone Lane Site until an alternative site becomes available for them. In Mr Masters’ submission, that was because a “new planning chapter” had begun since the Secretary of State’s decision in March 2011. Mr Masters drew attention to the new National Planning Policy Framework, and the new Planning Policy for Traveller Sites, both of which were not issued until March 2012, and to the potential impact on planning decisions of the decision of the Supreme Court in Re ZH. That judgment washanded down on 1^st February 2011, but its implications for planning cases (the decision itself concerned immigration) may not have been widely appreciated until somewhat later.

Again, it seems to me that Mr Masters’ submission over-states the true position. It is undoubtedly correct that new planning guidance has been put in place since the Secretary of State’s decision. However, the relevant provisions of Section 9 of the new National Planning Policy Framework which deal with planning applications relating to the Green Belt are very similar to the provision of PPG3 quoted in paragraph 12 above.

[87] As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances.

[88] When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations.

Statements to similar effect are also to be found in Policy E of the new Planning Policy for Traveller Sites

[14] Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development.

[15] Green Belt boundaries should be altered only in exceptional circumstances. If a local planning authority wishes to make an exceptional limited alteration to the defined Green Belt boundary (which might be to accommodate a site inset within the Green Belt) to meet a specific, identified need for a Traveller site, it should do so only through the plan making process and not in response to a planning application.

Mr Masters relied upon Policy H in the new Planning Policy for Traveller Sites in support of his argument that it is now more likely than before that temporary planning permission would be granted. Paragraph 25 of that policy (which, by paragraph 28, applies only to applications made from March 2013 onwards) states that:

.. if a local planning authority cannot demonstrate an up-to-date five-year supply of deliverable sites, this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission

This provision is new: but, in my judgment, it is not intended to over-ride Policy E, which states in terms that even temporary Traveller sites are inappropriate development in the Green Belt, which should not be approved except in ‘very special circumstances’. It therefore does not represent a material change of policy in the defendants’ favour.

Similarly, while the decision in Re ZH itself is new, the need to take properly into account the welfare of any children involved was well appreciated at the time of the Secretary of State’s decision, as is demonstrated by the detailed consideration given to those matters in Ms McKay’s report.

Against that background it is, in my judgment, highly unlikely that the defendants would succeed in obtaining even a temporary planning permission in relation to the Waterstone Lane Site. In coming to that view, I have taken fully into account the evidence to the contrary in Dr Murdoch’s report. Dr Murdoch has great experience in this field. However, to a significant extent, his evidence in the present case consists of a repetition of the substance of his arguments on the appeal, which failed to persuade Ms McKay and the Secretary of State. There is nothing sufficiently different in any of (a) the planning guidance and policies now in force, (b) the relevant law, (c) the planning proposition now put forward, or (d) the nature or extent of the educational, health or care needs of the defendants, from the position which obtained when Ms McKay and the Secretary of State considered these matters in late 2010 and early 2011, as to make it at all likely that a different conclusion would now be reached.

Even were I to be wrong about that, it seems to me to be unlikely in the extreme that any final decision could be obtained before the second half of 2014. The Council has exercised its power under the Town and Country Planning Act 1990 s 70A to refuse to determine the applications made by the defendants in March and December 2012. I decline Mr Masters’ invitation to adjourn the Council’s present application for an injunction to enable his clients to challenge the Council’s decision on his clients’ December 2012 application by judicial review. There is, in my view, no realistic prospect that permission would be granted, either by me or by any other judge of this Court or the Court of Appeal, for any such challenge. Among my reasons for that conclusion is the fact that the two year period during which the power under s70A can be exercised will come to an end in March 2013, so that a fresh application could then be made. That is well before any judicial review of the Council’s December 2012 decision would be completed. Mr Masters’ clients could therefore derive no practical benefit from any such review.

Assuming that Mr Masters’ clients were to apply in March 2013, it must be likely (having regard to the history) that their application would be refused by the Council, and quite probable that any appeal to the Secretary of State would not finally be determined until the second half of 2014. By way of example, some 19 months elapsed between the original application relating to the Site in August 2009 and the Secretary of State’s decision in March 2011.

In summary, therefore, it seems to me that the defendants’ prospects of obtaining even temporary planning permission for the Waterstone Lane Site are remote. It is also probable that, even if granted, such permission would not in any event be obtained before the second half of 2014.

It is not easy to strike the necessary balance between these competing factors, which are of such very different characters. As Sedley LJ noted in Coates v South Bucks DC (Footnote: ²⁶)

.. Proportionality is rarely a simple Yes or No issue. Except in cases where the answer is obvious (for instance where no intelligible justification has been put forward, or where the need is plain and the invasion trivial) it requires a structured consideration of the questions now well established in Strasbourg jurisprudence: is the objective sufficiently important to justify limiting a basic right; is the measure sensibly directed to the objective; does it impair the right more than necessary?

It is well-established that the enforcement of planning control, and the maintenance of the rule of law can each, in appropriate circumstances, be objectives of sufficient importance to justify evicting a family from its home: and the relief by way of injunction which the Council now seeks is sensibly directed to those objectives. The issue which I have to decide is whether, on the facts of this particular case, the objectives sought to be achieved justify that draconian course being taken.

I have already set out the various relevant factors on either side of the scales. I take all of those factors into account. The following further considerations, relating to those factors, seem to me to be the most material.

First of all, one of the primary factors against the grant of an injunction is that the Waterstone Lane Site is home to six families, whose lives will be very significantly disrupted if they are required to move. Evicting families from land to which they have good title but on which they have no right to live is a drastic step (Footnote: ²⁷).

However, the force of that consideration is weakened in the present case by the fact that the occupation of this site has, from the first, been unlawful. No planning permission was sought before the site was established: and no permission has at any stage been granted thereafter. As the European Court of Human Rights stated in Chapman (Footnote: ²⁸)

.. 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 art 8 of the convention to respect for his or her home and the right of others in the community to environmental protection .. When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong ..

Mr Masters submitted that the defendant's conduct in moving onto the Site, carrying out the development, and only thereafter applying for retrospective planning permission was not a breach of planning control. I reject that submission. Under the Town and Country Planning Act 1990 s 57(1), "planning permission is required for the carrying out of any development of land". That section establishes the general rule that it is unlawful (though not in itself an offence) to carry out any development (which, by section 55 of the Act, includes any material change in the use of land) without planning permission. It is true that section 63 of the Act permits an application to be made in connection with existing buildings and uses. But that section simply confers a power to grant planning permission retrospectively, so as to validate a prior contravention of planning control. The original change of use, for which no prior permission was sought, was unlawful at the time it was carried out. It has not been validated, and so it remains unlawful.

It is plain from the history set out above that the defendants have throughout had ready access (directly or indirectly) to planning consultants (such as Dr Murdoch) and lawyers. It seems to me to be a plain inference that the decision to establish this site without first seeking permission was a deliberate one, taken in the knowledge that it would be more difficult for the Council to remove an existing site than to prevent its establishment in advance. It is inherent in the defendants’ choice to adopt that course that they have also chosen to run the risk that, if their retrospective application for permission does not succeed, they may be obliged to leave.

Another important factor against the grant of an injunction is the fact that there are no suitable alternative sites to which the defendants can go. That is plainly a significant consideration, having regard to the “positive obligation imposed on the contracting states by virtue of art 8 to facilitate the gipsy way of life” (Footnote: ²⁹). The ability to live in a caravan rather than in bricks and mortar accommodation is bound up with the defendants’ ability to maintain their identities as gipsy, and to lead their private and family life in accordance with that tradition (Footnote: ³⁰). Moreover, “the regrettable plight of gypsies and other Travellers is attributable, to a significant extent, to the failures of national and local government” (Footnote: ³¹). In the present case, the evidence clearly establishes that the Council has been slow to recognise and to take steps to provide in its planning policies for the unmet need for Gypsy and Traveller sites in its area, and so must bear some responsibility for the fact that there is no alternative site available to the defendants.

However, it is not an appropriate remedy for that failure simply to permit the defendants to ignore planning control, and to set up a site wherever they chose to do so. As is pointed out in Chapman (Footnote: ³²):

.. to accord to a gipsy who has unlawfully established a caravan site at a particular place different treatment from that accorded to non-gipsies who have established a caravan site at that place or from that accorded to any individual who has established a house in that particular place would raise substantial problems under art 14 of the convention ..

To adopt such a policy would also result in an element of commercial unfairness to others (which would not assist community relations). Land without planning permission, particularly in the Green Belt (where there is little prospect of planning permission being granted) is, for that reason, usually significantly cheaper than land for which planning permission already exists or for which there is a reasonable expectation that such permission may be obtained. It would be wrong in principle to encourage any expectation on the part of Gypsies and Travellers that they can take advantage of this price differential so to acquire Green Belt land cheaply, but can thereafter rely upon their particular status to entitle them to use that land in a way which would be prohibited to others.

Moreover, the Council has made bricks and mortar accommodation available to the defendants. There is no evidence that any of the defendants would suffer any physical or psychiatric harm if they were compelled to live in bricks and mortar accommodation, such as that which has been offered to them by the Council (Footnote: ³³). The evidence simply establishes the defendants’ cultural aversion to such accommodation: and where, as here, a local authority such as the Council has had proper regard to a Traveller’s cultural way of life by making proper enquiries as to whether accommodation in the form of a caravan site could be made available, its inability to provide such accommodation will be both Article 8 and s. 193 compliant, even though the applicant has a cultural aversion to being housed in such accommodation (Footnote: ³⁴).

This consideration feeds into a third, which is the need to consider the best interests of the children who currently live on the Waterstone Lane Site. Mr Masters argued on behalf of the defendants that this should be a decisive factor against the grant of an injunction, since it will condemn the children to a life on the road, where their health will suffer, and (as graphically described by Sedley LJ in Coates (Footnote: ³⁵)):

.. The children who are at local schools will very probably go back into the cycle of innumeracy and illiteracy which continues to stand between Travellers and the access enjoyed by the settled community to health and jobs .. (Footnote: ³⁶)

That again will often be a powerful argument and one which sometimes is sufficient, of itself, to tip the scales against the grant of an injunction. However, on the facts of the present case, what is required for the health and education of these children is a settled location from which to access services, and that is on offer from the Council. It is the parents of the children who, by choosing to live “on the road” rather than in bricks and mortar accommodation, will deprive their children of that settled base. When the same argument as that deployed by Mr Masters in the present case was advanced in R v Basildon DC ex parte Sheridan (Footnote: ³⁷), Ouseley J’s answer (which I gratefully adopt) was as follows:

.. The District Council is clear in saying that there is no suitable alternative caravan site for them to go to. If parents decide not to take up the accommodation which the District Council is prepared to provide and live in caravans on the roadside, that is their decision. But they cannot insist that the best interests of the children are being harmed in those circumstances by any decision of the District Council. It would be the parental decision as to where they would be brought up.

That, of course, was a case in which it was the local authority’s own decision to take action under s 178 that was being challenged. In the present case, the decision is mine: and I cannot discharge my duty to treat the best interests of these children as a primary consideration in coming to that decision simply by pointing out that their parents must bear ultimate responsibility for whatever may occur as a result of what I decide. The best interests of these children may also perhaps include the preservation of their traditional way of life: and they probably do include the maintenance of their links with their extended family. However, a primary consideration is not the same as the primary consideration. Other factors – such as the need to maintain the rule of law - may carry greater weight in the balance. Moreover, as Ouseley J went on to point out:

Conceptually I find it hard to conceive that a child's best interests lies in allowing the parents to commit criminal offences where the situation will not be regularised in their favour as a consequence of any decision of the Council.

A fourth consideration is that each and all of the factors relied upon by the defendants as outweighing the unsuitability of the Waterstone Lane Site as a Gypsy encampment has already been carefully considered at each stage of the planning process. Having lost on appeal to the Secretary of State, and on appeal from the Secretary of State to the High Court, the defendants are now (in effect) relying upon the same arguments in order to resist enforcement of the consequent decisions. There is nothing so different in the nature or extent of the educational, health or care needs of the defendants, as now presented to the Court, that it changes the overall view of the proportionality of upholding the Enforcement Notice and taking enforcement action from that to which Ms McKay and the Secretary of State came. There are no relevant new factors in play.

It is also plain that the central matters relied upon by the Defendants were again carefully considered by the Council at the point at which it decided to apply to this Court for an injunction. In South Bucks (Footnote: ³⁸), Lord Bingham pointed out that:

.. the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests ..

In my judgment, the Council in the present case has indeed fully considered these factors, and has nonetheless resolved that it is necessary or expedient to seek relief. In those circumstances, it seems to me that the respect which I should accord to its decision is a material consideration in the balancing exercise.

The final consideration is that nothing other than an injunction will bring to an end the defendants’ illegal settlement on the Site. The choice is, essentially, between an injunction and nothing – which would, in practice, be equivalent to a grant of temporary planning permission, personal to these defendants. As Lord Bingham further stated in South Bucks (Footnote: ³⁹),

.. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint .. that will point strongly towards the grant of an injunction ..

The defendants’ contention is that they should be allowed to stay at the Waterstone Lane Site until they can go voluntarily to other lawful suitable alternative sites. That is, on the face of it, a request for an almost indefinite stay. This is not a case in which it can fairly be said that the defendants have “wilfully exploit[ed] every opportunity for prevarication and delay”. However, it is noteworthy that the defendants (or those associated with them) have set up the Site initially without first applying for planning permission; have thereafter appealed every adverse decision; following dismissal of their appeals, have twice made materially similar applications for permission; have sought to differentiate the last of these applications by limiting it to temporary permission, even though the issue of temporary permission had already been fully and carefully considered; and have only now, following the conclusion of the hearing before me, sought to enlist the aid of Mr Carruthers and his organisation. The defendants cannot be criticised for fighting their corner. However, it is plain that the defendants, and those advising them, are adept at “playing the system”. The practical effect of all this is that the defendants have managed to remain on this site unlawfully for three and a half years, of which the last 9 months have involved the commission of the criminal offence of failing to comply with an Enforcement Notice.

Against the background which I have set out above, there is in my judgment a real risk that to give the enforcement of the carefully considered decisions of the planning authorities, and of the requirements of the criminal law, such limited weight as would be necessary in order to hold that the grant of an injunction would be disproportionate, because of the interference with the defendants’ Article 8 rights and/or the rights of their children, would bring the planning system and the criminal law into serious disrepute.

These considerations, taken together, seem to me to tip the balance between the various competing factors decisively in favour of the grant of an injunction.

Mr Masters urged me, if I decided to grant an injunction, to frame it in such a way as to bring it into force no earlier than July 2013, at the end of the school year, so as to minimise the disruption to the schooling of the children living on the site.

I was initially sympathetic to this idea. However, on reflection, its seems to me that such a further postponement would fail to take proper account of the fact that the period for compliance with the Enforcement Notice has already been extended by the Secretary of State so as to expire 12 months after his decision, in March 2012. Moreover, a further ten months has passed since that extended period expired. It may also be no kindness to the defendants and their families to have an order hanging over their heads for a further protracted period.

Even so, it seems to me that the 14 day period sought by the Council is too short to enable the defendants adequately to prepare to make an orderly exit. I propose to order the defendants to leave the Site by noon on 28 February 2013. I propose to order that reinstatement should be completed by noon on 31 May 2013.

The Council’s draft order seeks an injunction in terms of all three limbs of the Enforcement Notice against each of the defendants. It seems to me that I can properly make an order in terms of the first limb - to stop using the Site as a Gypsy caravan site – against all of the Defendants.

However, its seems to me that the scope of the Town and Country Planning Act 1990 Pt VII is limited, so that I can only properly make an order in terms of the second and third limbs of the Enforcement Notice - permanently to remove from the Site all caravans, structures, hard standings and materials associated with the unauthorised use, and to reinstate the Site to its original condition by levelling the ground and re-seeding it with grass – against each individual owner, and then only in respect of the portion of the land which that person himself (or herself) owns.

I invite counsel to agree a draft Order for my approval. If they cannot agree, the matter can be restored before me at short notice.