Solihull Metropolitan Borough Council v Burton & Ors

I have before me two applications to vary an injunction granted in this court by His Honour Judge Owen QC on 27^th March 2012.

The matter has a long history. On the afternoon of Friday 30^th April 2010 the first to eighth defendants moved on to green-field land at Eaves Green Lane, Meriden (within Solihull Metropolitan Borough Council’s area), occupied the land illegally and stationed a number of caravans there. At the same time they submitted a written application for planning permission. The next day the local authority issued a stop notice. On 21^st May 2010 in this court His Honour Judge Purle QC granted an interim injunction effectively freezing the status qu o. By this time there were 17 caravans on site. The effect of the judge’s order was that no new ones could be introduced but equally, at least for the time being, those already in place could not be removed.

On 12^th July 2010 the planning application which had been submitted on 30^th April was refused by the council. The defendants appealed. A planning inspector was appointed and held an inquiry which lasted for nine hearing days. By a report on 8^th September 2011 the inspector recommended the dismissal of the appeal, and on 24^th October 2011 the Secretary of State dismissed the appeal.

That decision itself was the subject of an appeal to the Administrative Court under section 288 of the Town and Country Planning Act 1990. On 27^th March 2012 His Honour Judge Owen QC, sitting as a judge of that court, dismissed the appeal on all grounds. The first of the five grounds was that in refusing the planning application the council failed to take into account its own failure to provide sufficient sites for travellers including the present defendants, the appellants in the Administrative Court, but the judge rejected that contention.

On the same day as he delivered judgment in the Administrative Court, His Honour Judge Owen QC sat as a judge of this court, that is in the ordinary civil jurisdiction, to consider an application by the council as claimants for a final injunction. Both sides were represented by counsel. The matter was apparently listed for a day and a half. I have before me a transcript of the entire proceedings before Judge Owen, exhibited to a witness statement submitted by the council. Judge Owen was not in fact asked to give a ruling because Mr Richards for the claimant and Mr Masters for the defendants, neither of whom appears today, reached agreement as to the order which should be made.

The order granted an injunction against the eight named defendants plus “persons unknown” as ninth defendants. (A tenth defendant was added later by amendment.) It forbade the defendants from permitting the use of any part of the land for the siting of towing caravans or mobile homes or using the land for residential development, but that order in respect of the named defendants was suspended until 31^st March 2013. There was a similar injunction, again suspended for the same period, against carrying out engineering or building operations on the land such as the laying of hardcore, the creation of hard standings and access ways, the installation of drainage and so on. There was a mandatory order for the restoration of the land to its previous condition to take effect by 30^th April 2013.

The discussion before the judge indicates, as well it might, that it was recognised that the claimants were likely to obtain an order and (as the judge put it in discussion) the defendants had been able to negotiate a period of grace rather longer than that which they might have obtained had the matter been contested. At all events that was the consent order. It does not recite any undertaking by the council to do anything, for example to use best endeavours to offer alternative pitches to the defendants. There is no mention of any such undertaking or even aspiration in the transcript of the discussions before the judge. The proposed alternative site at Old Damson Lane, of which more in a moment, was not mentioned in the course of the hearing.

On 16^th January this year an application was made on behalf of the second, third and fourth defendants who are said to be the most vulnerable of the group, the second and third defendants and their children, including some who are not at all well, and the fourth defendant (who is, I understand, an elderly lady), for planning permission for two caravans to be sited on part of the land on some hard standing.

A fortnight after this application for planning permission was considered the Council’s planning committee had before them an officer’s report recommending the grant of planning permission to itself at the Old Damson Lane site for the purposes of pitches for travellers. Mr Willers for the defendants tells me that planning permission was subsequently granted, but it is not suggested that any works have been carried out in pursuance of the planning permission.

The application for planning permission for the two caravans at Eaves Green Lane made on 16^th January 2013 was, however, refused by the council on the 15^th March. There will of course be an appeal. The defendants’ advisor, Ms Hyner, has expressed the opinion that there is a reasonable prospect of that appeal succeeding.

In the meantime an application was made to this court dated 28^th February 2013 to vary the consent order made by Judge Owen on 27^th March last year so as to allow the two caravans occupied by the second and third defendants and their family and by the fourth defendant onto part of the site at Eaves Green Lane.

The Administrative Court decision on the planning appeal was the subject of an application to the Court of Appeal for permission to appeal, which was refused on the papers. It was renewed to an oral hearing but before the oral hearing could take place the application was withdrawn on 19^th March 2013.

The second application before me is a more wide ranging one issued on 20^th March 2013 to suspend as a whole the injunction contained in the consent order until after the defendants have been offered pitches by Solihull Council either at the Old Damson Lane site or elsewhere.

I deal first with this more wide ranging application. Mr Willers puts it on two cumulative bases. Firstly, he says, his clients simply have nowhere else to go. Secondly, he submits that the people on site include children, some of them not in good health, whose interests must be considered as a matter of high if not paramount importance pursuant to the decision of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; [2011] UKSC 4, particularly the speeches of Lady Hale and Lord Kerr.

Dealing first with the point that the defendants have nowhere else to go: within Solihull: as matters stand, and if one confines the availability of “anywhere else to go” to pitches for caravans, I am prepared to accept that that is correct. There is a conflict, as there so often is, between the defendant travellers, who say that they have a cultural aversion to bricks and mortar, and the local authority, which has fewer pitches available than there are travellers wishing to occupy them; it says that it is fulfilling its homelessness duty by offering bricks and mortar, and for the time being that is all it can do.

If I were considering an injunction application from scratch, that is to say at the beginning of the litigation, the argument of “nowhere else to go” would carry more weight. But I am not considering an application from scratch. I am considering the impending expiry of a twelve month period of grace, itself a far more generous one than is usually granted in contested injunction applications, at the end of which the defendants will have been in illegal occupation of the site for just under three years. They put their case for planning permission to the council and it was refused. They put it to the planning inspector and it was refused. They put it to Judge Owen in the Administrative Court and it was refused. They applied to the Court of Appeal and permission was refused. In those circumstances it would be quite wrong that they should not be held to the bargain that they struck in March 2012, which is that after a year they would go. I am afraid I am not persuaded, having read an email from Mr Masters who appeared on the previous occasion, that at the hearing in 2012 the council agreed to use their best endeavours to relocate the defendants to the Damson Lane site if possible and that that was a pivotal issue in the negotiations. There is nothing in the transcript to indicate that, still less anything in the order. The proportionality of requiring the defendants to leave the site when there are no alternative pitches available within Solihull was fairly and squarely an issue before both the Administrative Court and was potentially an issue, had the matter been contested, before this court on the final injunction hearing in March 2012. It cannot now be re-opened.

As to ZH (Tanzania), I do not regard this case as constituting a rewriting of planning law. It may very well be in the best interests of the defendants’ children to stay where they are: I dare say it is. It may also be in the best interests of the adult defendants to stay where they are. Certainly it is not for a judge to make any sort of patronising assumptions about people being better off in bricks and mortar, and I would do no such thing. It may be said that it is always in the best interests of travellers who have obtained a site of this kind to stay where they are, as they would prefer to do. But to allow that argument to be the ace of trumps would be to destroy planning restrictions, in particular restrictions on the Green Belt, altogether.

There is no authority cited to me which suggests that that is an appropriate course to take even on a first application. But where there is an injunction in force already the position is clearer still. The court cannot, on an application to vary, simply go back and start again from scratch: see for example South Bedfordshire District Council v Price [2006] EWCA Civ 493, an appeal from a decision of mine. But the proposition does not depend on that case; it is in my view one of first principles. I therefore refuse the wider application to suspend, subject to a point about the current cold weather to which I shall return at the end of the judgment.

I turn to the application to vary the injunction so as to allow the second and third defendants and their family and the fourth defendant to occupy the land for the purposes of two pitches with hard standing. As the Council paper recommending the refusal of planning permission indicates, the considerations are more finely balanced where the application is for two pitches than for eight or even more. Nevertheless I am satisfied, essentially for the same reasons as with the wider injunction, that it would not be right to go back to start now. The second, third and fourth defendants, like the other defendants, agreed in March 2012 to vacate the site within twelve months. Their appeals against the original planning application were taken through all the levels I have described and failed. Now, at a very late stage (not quite the fifty-ninth minute of the eleventh hour, but with two and a half months to go before the end of the twelve month period), an application has been made for planning permission on a different basis. It has been refused. It will no doubt be taken through the same levels of appeal to that of the first application: with what result we shall have to see. Again, I do not consider that it could be right to reopen the order made in March 2012 on the basis of the new planning application. This application to vary must likewise be refused.

I said I would return to the question of the weather. For the record, it is 26^th March and there are five days to go to the expiry of the original order. The weather in the last few days in the Midlands and indeed throughout most of the country has been quite extraordinarily unseasonal. There have been freezing conditions and a great deal of snow in the last few days and more has been forecast for the rest of this week. I am prepared to accede to the application to extend the suspension of the injunction for twenty-one days from the original expiry date of 31^st March 2013. I will substitute 21^st April and say that the mandatory order to make good a month after the vacating of the site should then be altered to require making good by 21^st May rather than 30^th April. Subject to that variation of the original order, the applications are dismissed.