Wealden District Council v Mitchell

This is an application made on notice by Wealden District Council for an injunction, in both mandatory and prohibitory terms, against Mr Dean Mitchell. I am satisfied from the evidence placed before me that Mr Mitchell was served with notice of today’s hearing more than two weeks ago, on 13 July 2017. He is not here and is not represented. Mr Beglan, who appears today on behalf of Wealden District Council, has assisted the court by raising any point which the court ought to have brought to its attention, in fairness to the absent Mr Mitchell. There is no bar to the hearing proceeding in Mr Mitchell’s absence, for reasons which will become apparent. I am satisfied that his absence is voluntary and so I have the heard the matter.

Mr Mitchell owns a plot of land at Ninfield in East Sussex, which comprises of, or includes, a small area of woodland. Within that woodland he has erected a wooden structure, which he has referred to as a ‘hobbit house’, and which he has, for a time, occupied as a dwelling. I have seen photographs only of the exterior, but the evidence before the court indicates that internally the structure comprises of a single main room with a side compartment, providing kitchen facilities and a chemical lavatory, and a compartment to the rear with a sleeping area. The roof of the structure, which is essentially made of timber, has been covered with soil. At the rear this slopes down to the ground, so that when the structure is approached from the rear it appears to be no more than a large mound of earth.

There are associated developments nearby, shown on the photographs before the court, including an area covered with a tarpaulin or other form of canopy.

The erection and maintenance of this structure is a breach of planning control. That is so because it is a dwelling. It would also be so even if it were neither intended for use as a dwelling nor in fact used as a dwelling.

Wealden District Council seeks an injunction which, in summary, would require Mr Mitchell to demolish the structure and make good the land, and would prohibit him from creating any other residential structure on the land.

Wealden District Council is the relevant local planning authority for the purposes of the Town and Country Planning Act 1990. By Section 187B of that Act it has power to apply for an injunction to restrain ‘... any actual or apprehended breach of planning control...’ where it considers necessary or expedient so to do. By Section 222 of the Local Government Act 1972 it has the power to institute civil proceedings in its own name, where it considers it ‘...expedient for the protection of the interests of the inhabitants...’ in the council’s area. Thus, there is no doubt that Wealden District Council is entitled to bring the present proceedings.

It is sufficient for me to summarise the history which has led to the Council considering it necessary and expedient to make today’s application. It is set out more extensively in the evidence contained in a statement by Mr David Whibley, dated 20 June 2017. Mr Whibley’s evidence includes this passage:

The reasons why that enforcement notice was issued were, in summary, that this was an unauthorised development outside the settlement boundary and within a protected woodland which had not been justified by any proven case of agricultural or forestry need. A further reason was related to the design of the dwelling, which I have already mentioned. It was further considered that to use the structure as a dwelling would create additional traffic hazards at the point of access to the adjacent B road.

It should be noted, before continuing with the chronology of relevant events, that no planning application of any kind has ever been made in relation to this structure.

Mr Mitchell exercised his right of appeal against the enforcement notice. The appeal was heard on 27 January 2016 and the Inspector’s decision was given on 18 March 2016. Two grounds of appeal were advanced by Mr Mitchell. They did not include any ground of appeal to the effect that planning permission should be granted for the structure.

The first ground advanced by Mr Mitchell was that the requirements of the enforcement notice were excessive, and that the objections to the structure could be overcome if it were altered so as to become something other than a dwelling. The Inspector rejected this ground, for reasons which she explained and which it is unnecessary for me to repeat.

The second ground of appeal advanced by Mr Mitchell was that the six-month period within which the District Council required compliance with the enforcement notice was too short. It is important to note that Mr Mitchell’s case, in this regard, was that the structure was his only home and that it would take time for him, first to find and finance alternative accommodation, and then to remove the structure from the land. He sought, by his appeal, an extension of the compliance period to one of two years.

The Inspector thought that was too long. She did however accept, as she said at paragraph 13 of her written decision, that:

The effect of the appeal process had been to stop the clock, so far as compliance with the enforcement notice was concerned. Thus, the 10-month period for compliance granted by the Inspector ran from the date of her decision, that is to say from 18 March 2016. The 10-month period, therefore, extended to 18 January 2017. Given that the enforcement notice had been issued on 24 February 2015, it may be noted that Mr Mitchell did in fact have very nearly two years from the date of the enforcement notice until the date by which he was ultimately required to comply.

Mr Mitchell did not, however, comply with the enforcement notice by 18 January 2017 or at all. The District Council had written to him after the appeal hearing, but before the Inspector’s decision was given, to advise him as to how he could and should contact the District Council’s Housing Department if he required advice about his housing circumstances. It also advised him how to contact the Planning Department if he wished to discuss any planning proposal or seek any other advice about the land. No action was taken in the latter regard, though as will be seen Mr Mitchell did, at a later date, make a brief contact with the Housing Department.

Further explanation of the position, and advice as to compliance with the order, was given on 23 March 2016, after the decision had been promulgated, when one or more representatives of the District Council visited the land.

In May 2016, Mr Mitchell did speak to the Housing Options Officer of the Council, but he took no further step, so far as it is known to the Council, to obtain alternative housing.

In September 2016, Mr Mitchell, and two other persons, wrote letters in similar terms to the Council. One of the correspondents was a lady who is believed by the Council to be, or to have been, Mr Mitchell’s partner. All three letters asserted that it was inaccurate to refer to the structure as a house because it lacked facilities such as running water and electricity, which would be found in what was referred to as ‘a regular house, flat or any type of residential dwelling’. That semantic point was plainly inconsistent with the case which Mr Mitchell had advanced on his appeal, which was, of course, based upon his occupying the structure as his dwelling. It may be, however, that the correspondents were doing no more than asserting that Mr Mitchell had changed the use of the structure, which was described as being ‘A storage shelter similar to a shed rather than as a house. The structure works as a lockable safe place for the tools Mr Mitchell requires to carry out his job as a carpenter and as caretaker of the woods’.

In October 2016, the Council again advised Mr Mitchell of the need for him to comply with the enforcement notice by 18 January 2017. A few days after that date for compliance had passed, on 24 January 2017, Mr Whibley, accompanied by police officers, visited the land. Photographs were taken. The residential structure and its associated development were still in place, and the residential and domestic paraphernalia were still present. Mr Mitchell himself was not present at the time of this visit. He had, however, left a notice, which was attached both to the door of the dwelling and to a nearby tree. It read as follows:

Following a resolution by the Council’s Planning Committee, Mr Whibley and a colleague returned to the site on 24 April 2017. In the absence of Mr Mitchell, they attached to the gate of the site a letter, dated 20 April 2017, advising Mr Mitchell that formal proceedings would be commenced against him unless he complied with the enforcement notice by 4 May 2017, and also inviting him to make representation as to any personal circumstances which might affect his ability to comply with that enforcement notice.

Nothing was heard from Mr Mitchell. Mr Whibley and others returned to the site on 8 May. The structure and associated development were still in place as before. The letter, which had been left on the previous visit, had been removed. Mr Whibley left a further copy of it.

On 17 May 2017, Mr Whibley received a letter from Mr Mitchell. Mr Mitchell said that the letter, which had been attached to his gate on 24 April, had been removed by someone else. He reiterated that he did not permit any access to his plot. He stated that he no longer used the structure as a dwelling, and did not wish to receive any further communication in relation to the proposed enforcement notice. He said he would treat any such further communication as litter. He stated that he rejected the proposed enforcement based on personal circumstances which were no concern of the District Council.

On 14 June 2017, a final warning letter was sent to Mr Mitchell at the address of the lady believed to be his partner. It gave him a final opportunity to comply with the notice. It was, however returned to the council’s solicitors marked ‘Not known at this address’.

The following day, on 15 June 2017, Mr Mitchell telephoned Mr Whibley. He asked why Mr Whibley was sending letters to other people. I take that as a further indication, if any were needed, that he was indeed known at the address to which the letter had been sent. Mr Mitchell went on, in his telephone call, to state that he was a free man and did not agree with or comply with any legislation. He said that he sometimes lived at what he referred to as the hobbit house. At other times he lived with friends or slept in his car. He said that the Council had made him homeless and that he had no job or money, and was suffering with a bad back. He said that if the Council took his home it was up to them to provide him with a house. He indicated that he was up for a fight, which would appear to be a statement of intention to contest the proceedings. Mr Whibley sought an address for a location at which correspondence could be delivered. Mr Mitchell declined to provide any such address, saying that ‘the Council would not find it’. Mr Whibley attempted to explain that the planning process had taken its course and that Mr Mitchell had been given ample opportunity to comply with it.

Given that Mr Mitchell had not complied with the enforcement notice, and appeared plainly to be unwilling to do so, the District Council, on 22 June 2017, issued a Part 8 claim seeking a permanent injunction against Mr Mitchell. At the same time the Council issued the Notice of Application, to be heard today, in which they sought an injunction in the following terms, namely that the defendant, Mr Mitchell, would be required by a date to be a determined by the court to:

It will be noted that the terms of paragraph one echo the requirements contained in the enforcement notice. It may further be noted that the proceedings were issued two years four months after the issue of the enforcement notice. Another month has passed since then without Mr Mitchell taking any action to comply.

By Section 37 of the Senior Courts Act 1981, the High Court has the power to grant an injunction, whether interim or final, when ‘...it considers it just and convenient to do so’. Where an injunction is sought to prevent breach of planning control, guidance as to the approach to be adopted by the court has been given by the House of Lords in South BucksDistrict Council v Porter [2003] 2 AC 558. In his speech in that case, Lord Bingham approved and endorsed observations which had been made by Simon Brown LJ when the case was before the Court of Appeal. Those observations were to the effect that a judge hearing the injunction application is not, save in exceptional circumstances, concerned with the merits of the planning decision, provided it had been taken in accordance with the relevant planning process. The court must, however, recognise that whenever a court grants an injunction it must contemplate the prospect of a committal to prison in the event of a wilful breach of that injunction. It is therefore necessary to consider whether an injunction is a proportionate and appropriate sanction. This may require particularly careful consideration where, for example, the granting of the injunction would require a person to depart from his family home. On the other hand, Simon Brown LJ indicated the court must also have regard to the need to enforce planning control in the public interest and must have regard to the nature of the breach of that planning control. Simon Brown LJ said, in a passage on which Mr Beglan relies:

Applying the principles contained in the decision in that case, to the circumstances of the present case, Mr Beglan invites the court to pay particular regard to the following features. First, that the planning breaches continued after the enforcement notice was served and after it came into force. Secondly, the breaches are flagrant. Thirdly, it is not for the court to examine matters of policy. Fourthly, the enforcement notice was substantially upheld by the independent planning inspector. Fifthly, Mr Mitchell has not provided any evidence to support why he acted as he did, or why he failed to comply with the enforcement notice. Nor has he indicated any other consideration which would outweigh the need to correct the flagrant breach of planning control. Sixthly, there does not appear to be any question of Mr Mitchell requiring the site for residential purposes. Even if he does, he has failed to cooperate with the District Council in its attempts to assist him to obtain alternative accommodation. Lastly, Mr Mitchell has had a lengthy period of time to remedy the breaches of planning control but has simply failed to engage with the Local Authority despite an enforcement notice.

Mr Beglan, very properly, drew to my attention a matter about which Mr Mitchell would no doubt have wished to address to the court if he had been present. There is nothing which has come to the attention of the Council which contradicts the comparatively recent statement by Mr Mitchell that he no longer uses the structure as his dwelling. There is, however, the fact that when service of notice of today’s hearing was made upon him, on 13 July, he was present at the site in mid-morning.

The evidence I have seen from the official who served the process upon him was to the effect that when he explained that he had a letter and High Court documents for Mr Mitchell, Mr Mitchell responded in very blunt terms that he was not interested, that he was not going to take the documents, and that he required his visitor to leave the land because he was trespassing. The official persisted in his attempts to explain and provide the documents to Mr Mitchell, but he would not take them. The official, therefore, touched Mr Mitchell’s arm with the documents and placed them on a prominent place nearby. Mr Mitchell, again in abusive terms, told him to take the thing away and get off his land. As the official left, having effected service, he again tried to advise Mr Mitchell that he really need to look at the documents because there was a court hearing on 31 July. Mr Mitchell’s response was to the effect that he was not interested, would not be going to court and that there was nothing anybody could do about it.

Those then are the circumstances in which the matter comes before me. I remind myself that this is not the substantive hearing of the Part 8 claim brought by the council. It is rather an application for an interlocutory injunction. However, it is an interlocutory injunction which, if granted, will effectively grant the District Council all, or substantially all, of the relief it seeks. That is a factor which is relevant to my application of the familiar principles set out in American Cyanamid Co v Ethicon Ltd [1975] AC 396. Those principles require me to ask three questions. First, I have to consider whether there is here a serious question to be tried. If the answer is in the affirmative, I must then consider whether damages would be an adequate remedy for a party injured by a decision of the court, either granting or refusing to grant an injunction. If not, I must consider, thirdly, where the balance of convenience lies.

It is necessary, both in relation to the first and in relation to the third question, that I should have regard to the fact that this application would effectively obtain the relief sought in the substantive claim. I must consider the degree of likelihood that the claim for an injunction would succeed at trial.

As to the first question, it is in my view entirely clear that there is a serious question to be tried. I can well understand why Mr Mitchell would prefer not to have to comply with the enforcement notice. He has put a lot of work and, judging by the photographs, has used considerable skill in building the structure. It seems that he has own reasons, which no doubt seem good to him, to prefer to live a somewhat secluded life. He has produced a letter, which confirms his own assertion that he has been able to do useful work in clearing parts of the woodland and in seeking to deter fly tippers.

He has, however, done all this in breach of the planning control which aims to protect and benefit the public as a whole and which applies to everyone: even those who, like Mr Mitchell, declare themselves not to be bound by the legislation and not to consent to its application to them. Here the enforcement notice was validly issued; it was substantially upheld on appeal, subject only to the granting of an extension at the time for compliance; it remains in force and valid today; and Mr Mitchell has not complied with it or, so far as the evidence before me shows, taken any step towards compliance with it.

The District Council has, in my judgement, a strong case, so far as it is possible to assess it in the absence of any contribution whatsoever from Mr Mitchell.

As to the second question, damages plainly would not be an adequate remedy for the District Council. If the injunction were wrongly refused any claim for damages would be difficult to quantify. Mr Mitchell’s own statement recently is to the effect that he has no money with which to pay any damages, and if an injunction were refused, all the indications are that the breach would continue. In contrast, should Mr Mitchell ever be able to show that the injunction was wrongly granted, it seems to me that damages could and would be an adequate remedy for any loss or wrong he had suffered.

I, therefore, turn to consider the third question, namely the balance of convenience. As far as I am aware Mr Mitchell has not acknowledged service with the Part 8 claim. He has not filed any defence. He has at no stage indicated what his defence to the claim would be, and has indeed asserted that his reasons for acting as he has done are no business of the council’s. His recent communication, that he no longer uses the structure as his dwelling - even if qualified by his further recent declaration that he sometimes sleeps there - is an indication that the granting of the injunction would not deprive him of his only home. In any event there is considerable force in the point made by Mr Beglan that ample time has already been allowed to Mr Mitchell to seek alternative accommodation if he be in need of it.

Any interference with Mr Mitchell’s right to possession and enjoyment of his property is plainly in accordance with the law, namely the lawful enforcement of planning control, and in my judgment it appears to be proportionate. I can see no good reason to prolong yet further the breach of an enforcement notice which was first issued nearly two and a half years ago. I go somewhat further. I am conscious, of course, that I have only heard one side of the story, but I am bound to say, on the information and evidence before me, that there appears to me to be a very high degree of likelihood that the District Council would succeed in obtaining a final injunction at trial. Indeed, in the absence of any engagement in these proceedings thus far by Mr Mitchell, it is difficult to see what defence he could put forward.

Certainly, there is no merit in the argument advanced in correspondence that the structure is not a house. It clearly lacks certain amenities generally found in most houses and generally thought to be desirable. It is however plainly capable of being used as a dwelling and Mr Mitchell’s own case in his appeal was that he was, at that time, so using it.

I would also add that it seems to me that the Council have been entirely reasonable in their willingness to offer assistance and advice to Mr Mitchell, and to allow reasonable, if not generous, time to comply with the enforcement notice. That attitude continues today. Mr Beglan tells me that the Council would be content if the court were to allow Mr Mitchell a further three months within which to comply with the notice. In putting forward that period as reasonable, the Council take into account that a period later in the year might, in any event, give rise to difficulties in the practicalities of accessing the site in order to remove items from it.

The draft order which is before the court explains to Mr Mitchell that he has liberty to apply to the court, to set the order aside or to vary its terms. That provision provides protection to Mr Mitchell, if there be some aspect of the matter which he has not yet drawn to the court’s attention but which would be of assistance to him.

For all those reasons it seems to me entirely just and convenient to grant the injunction substantially in the terms sought, and I will do so.