Basildon District Council v Thomas Anderson
| Jurisdiction | England & Wales |
| Judge | Lewis |
| Judgment Date | 12 November 2021 |
| Neutral Citation | [2021] EWHC 3062 (QB) |
| Docket Number | Case No: QB-2020-004209 |
| Court | Queen's Bench Division |
[2021] EWHC 3062 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Lewis
(sitting as a Judge of the High Court)
Case No: QB-2020-004209
Wayne Beglan (instructed by Basildon DC Legal) for the Claimant
William Webster (instructed by Ewing Law) for the Third and Tenth Defendants
Hearing date: 11 and 12 November 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Lewis
These proceedings were brought by Basildon District Council nearly a year ago to stop unauthorised development by the defendants of green belt land south of Redlands, Hovefields Drive, Wickford, Essex.
A full account of the factual background to the original injunction applications, and subsequent events, can be found in detailed judgments of Foxton J dated 9 December 2020 [2020] EWHC 3382 (QB), of the Court of Appeal dated 16 March 2021 [2021] EWCA Civ 363 and of Ritchie J dated 7 October 2021 [2021] EWHC 2734 (QB).
In respect of the applications before me today, the chronology of events can be summarised as follows:
(a) The second defendant originally owned the land that is the subject of these proceedings. On or around 27 November 2020 he sold the site, dividing it into eleven separate plots. The purchasers included family members and other acquaintances, who are the third – eleventh defendants. They purchased one plot each, save for the third and seventh defendants who purchased two.
(b) After close of business that day, Friday 27 November 2020, a planning application in respect of the land was lodged with the claimant on behalf of one or more of the defendants.
(c) On Saturday 28 November 2020, Essex Police notified the claimant of extensive work being undertaken on the land, reporting that there were 80–100 people working on it, with diggers, several large trucks and an excavator in operation, and with numerous vehicles driving on and off. It was observed that the land had now been physically divided into plots, and an access track had been created.
(d) On Sunday 29 November 2020, the claimant sought to serve a Stop Notice and an Enforcement Notice at the site but were refused entry and threatened by those present. The tenth defendant accepts that he threatened two of the claimant's officers (one man and one woman) saying that he would kick them “between the legs” if they did not leave. That evening, the claimant obtained a prohibitory injunction, without notice, from Garnham J. This prohibited any development work on the land, save in accordance with planning permission, and prohibited the entry of mobile homes or caravans onto the land.
(e) On Monday 30 November 2020, the claimant's officers observed a large static mobile home and one or more smaller caravans on the land. Work was reported to be continuing. Later that day, following a further without notice application, Cutts J granted a mandatory injunction that required all static caravans, mobile homes and touring caravans to be removed by 4pm on 2 December 2020 and the defendants to refrain from causing any such mobile homes or similar from being placed on the land.
(f) There was an ‘on notice’ hearing on 8 December 2020 before Foxton J. By this time, the site contained eighteen touring caravans, one static caravan, three mobile homes, two portacabins, one wooden shed and seventeen motor vehicles. The third – eleventh defendants were represented at that hearing. They did not seek to resist the continuation of the first injunction but sought to vary the second to allow them to continue to reside on the land pending the final determination of their planning applications.
(g) Foxton J continued the orders. The Court of Appeal later summarised his decision in the following terms: “Foxton J found there to be a serious issue as to a deliberate and flagrant breach of planning controls. The rapid and co-ordinated nature of the work begun on a Saturday suggested an attempt to achieve a fait accompli before anticipated legal countermeasures might be deployed. He considered, as required by South Buckinghamshire District Council v Porter [2003] 2 AC 558, the impact of the injunction on the Appellants. Having done so at some length, he accepted that being forced to leave the land involved prejudice to them, but that the evidence as to its extent and duration was less clear. He found that little weight could be given to a state of occupation that had been achieved in deliberate contravention of the Council's notices and the Court's orders. He therefore continued the orders, and included a power of arrest in the light of the history”: Anderson & Ors v Basildon District Council [2021] EWCA Civ 363 per Peter Jackson LJ at [8].
(h) The injunction granted by Foxton J included the following terms:
“1. The defendants are required by 4pm on 14 December 2021 to remove from the land any static caravans, mobile home and touring caravans.
2. The defendants be prohibited (whether by themselves, their servants or agents) from:
(a) Bringing a caravan, a mobile home, or any other structure intended for or capable of habitation onto the land.
(b) Erecting on the land any structure of building capable of or intended to be put to residential use.
(c) Carrying out any works including but not limited to the laying of hard standing on the land
(d) Allowing any persons to take up occupation of the land”
The injunction did not prohibit any activity that was undertaken within the scope of any planning permission for the land.
(i) The represented defendants' application for permission to appeal the decision of Foxton J was refused by Floyd LJ on paper on 14 December 2020.
(j) The Court of Appeal's judgment explains what happened next: “The defendants did not obey the orders. They did not remove any static caravans, mobile homes and touring caravans by the date contained in the order of Cutts J, nor by the date fixed by Foxton J. They carried on with further works and in some cases brought more dwellings and vehicles onto the land” Anderson & Ors v Basildon District Council (supra) at [10].
(k) The claimant issued its first committal application on 5 January 2021 and its second on 1 February 2021. Both were against eight of the defendants, including the third and tenth defendants.
(l) The committal hearing took place on 12 February 2021 before Anthony Metzer QC. All the respondents were represented. The third and tenth defendants admitted the breaches in full on the basis set out in the first schedule to this judgment. The court found the eight respondents to be in contempt and imposed custodial sentences. The third defendant received a sentence of four months. The tenth defendant received a sentence of seven months. The others received sentences of between five and eight months, based on the number of breaches. The sentences were suspended for twelve months, on compliance with three conditions:
“1. The Defendants shall by 4pm on 3 March 2021 remove from the Land any static caravans, mobile homes and touring caravans. [This deadline was later varied by the Court of Appeal to 22 March 2021]
2. The Defendants shall thereafter not (a) bring any caravan, mobile home or any other structure intended for or capable of habitation on to the Land; or (b) erect on the Land any structure or building capable of or intended to be put to 2 residential use; or (c) allow any person to occupy the Land.
3. The Defendants shall remove all of the works undertaken in relation to their respective individual plots by 10 April 2021.”
(m) The court accepted the claimant's submission that it was not easy to envisage a more flagrant and coordinated breach of planning control by a group of individuals acting in concert on previously undeveloped Green Belt land, that there had been a complete failure to comply with the orders, and that the circumstances in which further works had taken place aggravated the position. It considered that the gravity of the breaches passed the ‘custody threshold’ and the court could not simply ignore continuing breaches of this nature. The judge considered the belated apologies to be of limited mitigation because they came so late, and there had been no attempt to comply with the orders.
(n) Mr Metzer QC concluded his judgment in the following terms:
“In all the circumstances therefore, it is hoped that this will be the last time that these Defendants come before a court. They need to understand, as I am sure they do… that this is the last chance before immediate sentences of imprisonment will be imposed by reason of any breach of any terms of the order that is now being imposed…”
He continued: “I want to stress, as far as the defendants are concerned, they were extremely close to immediate terms of imprisonment and they must understand that they will have to comply and it is very much hoped this is the last time that the court will be involved in any litigation concerning to this matter”.
(o) On 5 March 2021, Deputy High Court Judge Mr Ter Haar QC refused applications on behalf of eight of the defendants – including the third and tenth defendants – to vary injunctions to allow them to remain on the land.
(p) The defendants also made an application to the Court of Appeal in respect of the decisions of Mr Metzer QC: Anderson & Ors v Basildon District Council (supra). On 12 March 2021, Peter Jackson LJ dismissed the appeal and said the following:
“26. The...
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