Surrey Heath Borough Council v Robb & Ors

This is a judgment arising out of a hearing which took place before the court on Wednesday 1 July 2020. This case concerns an application under s.187B(1) of the Town and Country Planning Act 1990 (“the TCPA”) for injunctive relief against the defendants in respect of development of land and its use for caravans at a site known as the land lying north of Bagshot Road, Chobham, Surrey, HM Land Registry title no. Sy680017 (“the land”).

On 12 June 2020 Murray J granted a without notice injunction to the claimant on an application pursuant to s.187B(1) of the TCPA. Following a hearing on the return day on 19 June 2020 I renewed the injunction by a judgment given orally on 22 June 2020. I thereafter gave a further written judgment on 24 June 2020 dealing with directions in relation to the adjourned return day for 1 July 2020. This judgment should be read alongside the judgment of Murray J and my earlier judgment.

The continuation injunction on 22 June 2020 was on the basis that there would be a hearing on 1 July 2020. The defendants had served statements through Mr James Robb and Mr Michael Levy dated 18 June 2020 to the effect that they had not had a sufficient opportunity to serve evidence and that the defendants have not yet had time to give comprehensive instructions in response to the first witness statement of Ms Greenfield, not least because that statement was not received until 17 June 2020. The defendants also adduced expert planning evidence from Mr Brian Woods, also dated 18 June 2020.

At the hearing on 22 June 2020 a timetable for service of evidence was fixed for further evidence from the defendants by 1 p.m. on Thursday 25 June 2020 and evidence in response of the claimant by 1 p.m. on Monday 29 June 2020. On 22 June 2020 after an oral judgment had been delivered, Mr Masters, counsel for the defendants, stated that the named defendants wished for the hearing to be held in the Royal Courts of Justice and not by video hearing. They also sought that cross-examination of Ms Greenfield take place at the hearing. On 24 June 2020 I handed down a judgment stating that the hearing would take place remotely, suggesting that the defendants could arrange to be with their lawyers by arrangements being made to attend rooms, whether at chambers, a solicitor’s office or other premises hired for the purpose. The defendants served a short further statement of James Robb, the first defendant, and a supplemental report of Mr Woods on 25 June 2020. In the meantime, on the same day at 9.20 a.m. a letter had been sent by the solicitors for the claimant seeking information relating to matters such as where the defendants had been living, the land which they owned and their financial resources, including income and savings. The email sought the following information:

“1.

Where each of the Defendants (sic) been living since they vacated the Land at the Knoll, please provide any documentary evidence to demonstrate the same: including notices of eviction/directions to leave which include their names if it was alleged they were living on roadside encampments; which boroughs they have been travelling through or living in; where they were based during the lockdown; and dates at different locations if they allege they were on roadside encampments.

2.

If any of your clients contend that they were evicted/directed to leave by any Councils from a roadside encampment or unauthorised encampment in the last 6 months please state by which local authorities and which dates, with details of where the encampment was located;

3.

Any real property or land owned by the Defendants with reference to which Defendant owns the property/land, or have been owned by any of the Defendants in the (sic) 3 years;

4.

Any pitches or plots on caravan sites owned by any of the

Defendants, or, which any of the Defendants have a tenancy or licence to occupy and their whereabouts with address details.

5.

Any caravan pitches or plots any of the Defendants have occupied in the last 3 years with full details of the same.

6.

The income and savings of each Defendant and their business interests and employment status both now and over the last 2 years.

7.

Any tenancies or licences of any of the Defendants to occupy bricks and mortar housing which they have or have had the benefit of in the last 3 years and the reasons why that accommodation is no longer available to them.

8.

Which local authority lists are the Defendants currently on for a traveller’s pitch and when was their name added to the list.

9.

Which schools are the children of the Defendants enrolled at, with which address given to the education authority, and on which dates were they enrolled in these schools.

10.

What relatives do the Defendants have in the County of Surrey with bricks and mortar accommodation.

11.

How was Mr Robb proposing to fund development of a bricks and mortar property on the Land he currently occupies.

12.

Where did the static caravans currently on the site come from, when were they purchased and who delivered them, please provide receipts for purchase and delivery”.

The claimant’s response from Mr Levy was that the defendants had to concentrate on the preparation of the evidence for later that day. Mr Rose of the claimant’s solicitors wrote saying that it would suffice if the information was provided separately and asked for a reply within 24 hours. Mr Levy stated that it would take a few days to collate such information as they were able to provide and this could be given when evidence was adduced at the hearing on Wednesday 1 July 2020.

The defendants applied for an adjournment on short notice. The basis of the application was as follows. (1) The case is about the defendants’ homes and their ability to live with their extended families in accordance with their traditional way of life in caravans and that the defendants wish to be present to hear and understand the arguments advanced on their

In my judgment, these reasons were inadequate to support an application for adjournment for the following reasons, namely

The submissions above in support of an adjournment were founded in part on the alleged need to have cross-examination at an interim hearing. Mr Masters submitted that an interim hearing with cross-examination was frequently ordered and particularly in relation to such injunctions relating to travellers. He said that it was necessary to have a hearing before considering what he described as the eviction of the defendants from their homes. He said that there had been cases in which he and Ms Bolton had appeared against each other where this had happened. It is right that this is not the first case where Mr Masters has appeared for travellers and Ms Bolton has appeared for a local authority. Ms Bolton said that crossexamination had not been ordered at an interim hearing. That did not occur in the case of Surrey Heath Borough Council v Shir & Ors [2019] EWHC 3251 (QB) where after a fully contested interim hearing with the same representation an order in similar form to the current one which had been ordered without notice in that case was continued without any cross-examination being ordered.

In my judgment, it is rare for cross-examination to be ordered on a hearing for an interim injunction. When Mr Masters was giving instances of cross-examination being ordered, this seemed to be in the context not of applications for interim injunctions but hearings of preliminary issues. It is particularly to be noted that the desire to cross-examine was not confined to some particular narrow aspect of the case but was general. No circumstances have been shown for cross-examination at an interim stage and especially so when the crossexamination was not limited to a discrete subject. In any event, if there were to be crossexamination of Ms Greenfield and oral evidence from the defendants as suggested, then justice would require the defendants too to be cross-examined. The cross-examination would not be complete without some disclosure or provision of information in advance.

In my judgment, the time for cross-examination is trial. However, the thrust of the submissions of the defendants is that the full circumstances of this case require to be examined at the earliest opportunity and, on their case, before the defendants were ordered not to use the site for residential purposes. On this basis of the need for an early evaluation of the merits of the case, the court canvased with the parties the possibility of having a speedy trial. The parties have agreed in principle that a speedy trial should take place in the week commencing 24 August 2020 and to provide a draft direction to which the court will return at the conclusion of this judgment. This will give the parties the opportunity to prepare for trial. Both parties through their counsel are committed to a speedy trial. The case will be case managed and there will be a pretrial review. It is a fixture and the parties are expected to maintain it. In the interests of continuity, the past directions agreed by the parties are predicated on the basis that I shall conduct the trial and shall deal with the case management in the meantime.

In these circumstances, the following occurs. First, as regards the interim injunction application it is more limited than would otherwise be the case, because it is for a limited duration, given the imminence of a speedy trial next month. Secondly, the case for an adjournment either falls away in view of the speedy trial, or, if it is still live, it is not granted as regards the hearing of an application for an interim injunction. No longer does any question about cross-examination arise because it will happen imminently at trial. In any event, it is not appropriate for an interim injunction application. No longer is there a problem about any absence of readiness of the defendants for the full hearing because the full hearing will be at the trial. The defendants have had adequate opportunity to be ready for an interim hearing. The numbered findings above in answer to the points raised about an adjournment are repeated. However, by organising a speedy trial at once, there is catered for the need to bring on at an early opportunity the full evaluation hearing and crossexamination and the points raised by the defendants as regards the prejudice of not having such a hearing largely fall away.

The matters which now arise are to deal with the development of the case since my judgment of 22 June 2020. I do not intend to repeat the matters therein set out and this judgment should be read alongside it. The only issue now is whether the injunction about not occupying the site as a residential gypsy caravan site should continue until the trial or should it be lifted, as the defendants contend, or should there be some other order. The questions then remain about the arguability of the case and about the balance of convenience between now and trial and what order is just and convenient in all the circumstances of the case. It is, first, necessary to consider the developments that have taken place as regards evidence. I intend to touch upon areas of controversy, but the court is mindful that it is not necessary to resolve these matters pending the speedy trial, save insofar as is necessary for the limited purpose of the proper order between now and trial. The scope of the evidence was very limited. The first witness statement was understandably limited in scope because there was limited time between receiving the first witness statement and the first hearing on 19 June 2020. However, by the time fixed for evidence on Thursday 25 June 2020 the defendants had had the first witness statement of Julia Greenfield for over a week. The second statement of James Robb is limited in its ambit and is quite general in what it says.

First, there is no information as to what housing the defendants had in the period prior to moving on to the Lightwater site in October 2019. Mr James Robb asserted wrongly at para.2 that in March 2018 the defendants were living on the Lightwater site. This was accepted by Mr Masters to have been wrong, but there was no explanation as to how the error arose, nor was there any evidence as to where the defendants had actually lived prior to Lightwater, despite that being a question asked on 25 June 2020. Secondly, although there is reference in para.5 to moving to various places between December 2019 and 7 June 2020, there is no documentary evidence showing where the defendants were and particularly what they did during lockdown from 23 March 2020. This paucity of information was following a “no comment” response to an enquiry about the defendants’ welfare needs and the question as to where they had been living. This had been mentioned in Ms Greenfield’s first witness statement at para.10. Thirdly, despite evidence in the same statement that it appeared that Mr James Robb was a man of means from his land purchases and activities (para.10 and 11) he has not provided any specific information, either in evidence or in answer to the question, about his means asked in the email of 25 June 2020.

Fourthly, Mr James Robb’s second witness statement at para.8 refers to Broxbourne but is not specific about when the defendants lived there. In any event, there is an inconsistency between the reason for leaving Broxbourne given in para.8 of the statement and a different reason given in welfare check forms when the defendant moved on to the Lightwater site. Since these are personal matters it is not necessary to spell these out in this judgment.

Fifthly, there is an assertion in para.9 that there was nowhere else to go other than the site in question as a permanent base for the family, but this did not address any of the matters which had been raised in Ms Greenfield’s first witness statement about other addresses which might have been available. There was no explanation as to why Mr James Robb had not been able to stay at his father’s property at 11 Hazelwood, Knaphill, Surrey, nor has there been any explanation in evidence as to why he was not living at his registered address of 114A Robin Hood Road, Knaphill, Woking. In the course of the hearing Mr Masters said that this was his sister’s address which he had used for correspondence. This would give rise to further questions, but for the moment this is not in evidence. This is despite these matters having been raised in the first witness statement of Ms Greenfield at para.10.

In addition to the foregoing, there is evidence about planning matters contained in the two reports of Mr Brian Woods of 18 June 2020 and 24 June 2020 and in the second witness statement of Mr James Robb. It should be said at the outset that in addition to this there is a whole volume of material of various reports to which reference was made in the course of argument. It is not appropriate in this interim decision to go through the evidence in detail. That will be for trial. By ordering a speedy trial the time and opportunity for that full hearing has been accelerated. It is first to be noted that the development work and the change of use occurred without permission. Mr Woods says that sometimes this occurs and retrospective permission is granted. He is of the “professional opinion that there is a good prospect of obtaining planning permission on a temporary basis”. He said that the court was misled by the description of the site being surrounded by heritage assets. There were in fact three heritage properties, one opposite the land at Brook House and two others adjoining the site, namely Penny Cottage and Maltmans. He says that there would be some impact, but not as great as that of a detached house, as per the earlier applications. Further, the impact can be mitigated by tree and hedge planting. In his supplemental report he said that landscaping could be undertaken and in any event the appeal showed that the claimant had prejudged the application. Mr Partington drew attention to the view of the planning inspector that the proposed development (which at that stage was a detached house) would

As regards green belt, whilst Mr Woods acknowledges that the site is green belt, there are other sites where a development in green belt has been allowed. Mr Woods points to sites in Ongar, Essex and in Warlingham, Surrey. He also referred to a recommendation made in respect of a green belt site at Farningham Road, Kent. Mr Partington pointed to the fact that in the appeal the inspector had pointed to development in the green belt being inappropriate and would have caused additional harm to openness, both spatially and visually, and countryside encroachment. Further, he pointed to para.16 of the planning policy for traveller sites (“PPTS”) which said that temporary or permanent development was inappropriate and harmful to the green belt and should not be approved except in very special circumstances. He said that subject to the best interests of the child, personal circumstances and unmet need were unlikely to clearly outweigh the harm to the green belt and any other harm so as to establish very special circumstances. He also referred to the written ministerial statement of 17 December 2015 which states that intentionally developing green belt sites without planning permission is a material consideration which weighs against the grant of planning permission. This is a policy decision because of the absence of opportunity to limit or mitigate harm and the expense and time-consuming nature of enforcement action.

The defendants were particularly critical about relying by the claimant on TBH SPA. None of the site was within 400 metres of the special protection area and whilst it was within five kilometres, so was the entirety of the borough. This had not been a relevant consideration in the planning appeal. All that was required was a contribution to the strategic access management and monitoring measures. This was not arranged but now could be.

For the reasons given in my judgment of 22 June 2020 it is appropriate to continue the injunctions until the current hearing. It was a part of that judgment that the court would be able to reconsider the matter afresh at this hearing. It has been done in the light of the above-mentioned new evidence and extensive further submissions, both in writing and orally. It is not accepted that a good reason has been shown not to be ready for these proceedings or to explain why the evidence was so limited and why there have been no answers to the questions raised on 25 June 2020. Further, there has not been any adequate explanation as to why arrangements could not have been made for the defendants to attend an office to watch the hearing. For the reasons set out above, the court was entitled to proceed on the basis of the evidence as it now stands. Despite the foregoing, the court has allowed for difficulties which the defendants have had by fixing a full hearing at the earliest opportunity. Taking into account the nature of the relief sought, the speedy trial will enable matters to be dealt with in August. Thus, the considerations now concern an interim injunction simply from now until the hearing in August. It is important to note in that context that in reaching conclusions as to the way ahead it is simply on the evidence thus far placed before the court. The evidence is quite limited and in no sense do interim findings have a bearing on the final result where matters will be considered afresh. The matter will be tried on the basis of the evidence as it then appears. The very fact that the court is allowing for a speedy trial is to allow at an early stage a much fuller presentation of evidence of the parties relevant to making a final order. It is also the case that the court is dealing with this matter by reference to the interim injunction criteria at this stage and especially the balance of convenience rather than the criteria applicable at a final trial of the action. The primary question is whether the injunction should be continued in the form that it was ordered by Murray J and continued by me, namely preventing the defendants from

Notwithstanding the evidence that has been filed since the hearing of 22 June 2020, the evidence remains to the following effect. First, there is a more than arguable case that there has been a serious breach of planning control by not only developing the land, but also by changing its use by residing there and using it as a caravan site. This applies in particular to the case about doing this on green belt land and to the argument that there would have to be very special circumstances to justify the use of the land in this way. This is said by the claimant to be so important that subject to the best interests of a child, personal circumstances and unmet need are unlikely clearly to outweigh harm to the green belt so as to establish very special circumstances. The claimant also says that a material consideration in the light of the ministerial statement will be that this has been done without prior consent. Against this background it may be at trial that it will appear that there are very special circumstances and/or that the material consideration of no prior permission does not prevent the balance being in favour of the defendants. To this end it will be necessary to consider the evidence as a whole about the possibility of obtaining such permission in respect of green belt land. It may also be necessary to consider the relevant policies of the claimant towards gypsies and travellers and how this affects the defendants and the overall merits of the case. Those matters may well feature at the trial.

The claimant’s case is made the stronger by reference to the considerations of the heritage sites and the argument that the change of use of the proposed development would harm the character and appearance of the area and would not preserve the settings of at least two listed buildings. The SPA consideration is much less significant, bearing in mind that a belated contribution to the SAMM would remove some of the force of the argument. There is an argument that the SPA consideration was pitched higher than need be the case, but this was not material in the scale of things, given the points regarding green belt and heritage considerations. Further, it is to be noted that the development and change of use as a matter of fact took place without prior contribution being made.

The question then is whether the injunction at present ought still to be confined on the basis of the balance of convenience between now and the trial. The evidence adduced in this regard has been limited as discussed above. It has failed almost entirely or with any particularity to deal with the evidence as to where the defendants were in the period prior to the occupation of the Lightwater site. This is entirely relevant as to where they can be expected to live from now until trial. The only evidence given was not correct and the suggestion that they had lived in Lightwater from March 2018. Further, evidence as to where they were since the removal from the Lightwater site to 7 June 2020 has been given without any specificity and without documentary evidence. This point is potentially the more significant by reason of the refusal to give information about where they were in the context of the welfare check form. It was obviously of importance, because of the way in which the case was put against the defendants in the first witness statement of Julia

Another aspect of the way in which the case was put was that the defendants had housing options and resources from which they could be expected to find other housing. The defendants could have provided information about the various properties referred to in the first witness statement of Julia Greenfield, but they have declined to do so with any specificity. I have referred to this above. Likewise, there is an absence of information as to the ability of them or some of them to live temporarily with Mr James Robb’s father. There has also been no information to rebut the case that Mr James Robb is a man of means, as inferred in the first statement of Ms Greenfield. There has not been information provided as to his capital or income or that of the other defendants. For the purpose of this interim hearing, the court is entitled to infer, as did Murray J, that the effect of an injunction preventing their residing on the land will not render them homeless and/or will not lead to their having nowhere to go. It is significant in this regard that no application has been made to the claimant at any stage about their housing needs.

There were arguments advanced as to whether the claimant made inadequate provision for gypsies and travellers. There is a question as to whether it has adequately assessed the needs of the traveller community and whether there were or would be an adequate supply of sites now and in the next five years. However, at least at this interim stage the other findings about the defendants not being rendered homeless and with a trial in seven weeks’ time these other considerations have less significance. They have not sought alternative accommodation from this or any other local authority. There has been a good deal of evidence about the possible sites available to the defendants, about their resources, which have not been answered. The defendants have sought to make submissions without evidence as to these matters and have invoked the National Planning Policy Framework of February 2019 and the planning policy for traveller sites. Without evidence to rebut the inference that the defendants had other accommodation and/or resources to obtain accommodation, at this interim stage this court, as Murray J, is entitled to take into account these inferences in the overall balance of convenience. It was said that the defendants have a cultural aversion to bricks and mortar. This is touched upon but not developed in the evidence. It is said that it is not sufficient that the only accommodation available in the interim is bricks and mortar. In my judgment, this is a point again which is not developed in the evidence that could have been over the period of a fortnight from the service of the evidence to the hearing of 1 July. The court takes into account the fact that there may be a cultural aversion to bricks and mortar housing. However, this must go into the balance against the unlawful or unauthorised conduct of the defendants at a particular site. It is not clear that they will not be able to have their caravans elsewhere, but if they are dependent on bricks and mortar housing for the next few weeks then it is noted that gypsies and travellers dependent on local authorities to provide temporary housing can be provided with emergency accommodation by bricks and mortar housing: see Sheridan v Basildon Borough Council [2012] EWCA Civ 335 citing in particular a judgment of Longmore LJ in Lee v Rhondda Cynon Taff County Borough Council [2008] EWCA Civ 1013. At trial there may a different position which will emerge subject to the defendants engaging in the process and providing far more detailed evidence than has thus far been presented.

I have also considered the interests of the children and Article 3 of the United Nations Convention on the Rights of the Child. Their rights are also to be taken into account in the context of Article 8. The issue of the welfare of the children was raised in Ms Greenfield’s first witness statement at para.27 to 28 and there has been no response from the defendants. Further, as regards schooling of the children, there is a dearth of information provided by the defendants about the schooling of the children, just as there has been little information about

As was the case when the matter was before Murray J and before me on 22 June 2020, I am satisfied that damages are not an adequate remedy for the claimant. The court should consider whether damages are an appropriate alternative remedy for the local authority in the event of (inaudible). Plainly, in these circumstances the local authority is acting as custodian of the public interest and there is no financial compensation capable of repairing the damage to that interest. The injunction sought is for the protection of the environment and the protection of the public interest. It is there to protect the rights of other property owners and residents in the locality. There is more than an arguable case that an injunction is justified under s.187B of the TCPA so that the development should not be allowed to continue and that the defendants should not be allowed to stay on the site.

I am satisfied in particular that there is more than an arguable case about the following matters:

The foregoing and the other matters in this judgment give rise to a serious issue to be tried for the purpose of American Cyanamid. I mentioned in my judgment of 22 June 2020 the need to depart from the American Cyanamid considerations to have a higher threshold for an interim injunction which, although framed in a negative form, involves the defendants vacating the premises. To that end I said that this was a case that would satisfy a threshold of a higher than arguable case. It is a sufficiently strong prima facie case to justify an injunction of this kind in the circumstances of this case. However, it is what it says. It is prima facie. There has not been a trial or even a mini trial. That is very much for August and I shall return to that later in this judgment. Further, the foregoing matters also go to the balance of convenience. I am satisfied that the balance of convenience is in favour of the grant of the relief sought at this stage. I am also satisfied that it is just and convenient to order an injunction. This is not simply because of the issues highlighted to date, but also the matters to which I refer in the remainder of this judgment.