Basingstoke & Deane Borough Council v John Eastwood & Others

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMr Justice Nicklin,The Honourable
Judgment Date06 February 2018
Neutral Citation[2018] EWHC 179 (QB)
Date06 February 2018
Docket NumberCase No: HQ17X04688

[2018] EWHC 179 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

INTERIM APPLICATIONS COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

THE HONOURABLE Mr Justice Nicklin

Case No: HQ17X04688

Between:
Basingstoke & Deane Borough Council
Claimant/Respondent
and
John Eastwood & Others
Defendants

and

MMT
Applicant

Alex Grigg (instructed by BPS Solicitors) for the Applicant

David Lintott (instructed by the Borough Solicitor) for the Respondent

Hearing date: 5 February 2018

Mr Justice Nicklin The Honourable
1

On 21 December 2017, the Claimant applied, without notice, for an injunction under s.187B Town & Country Planning Act 1990 (“the 1990”) to restrain anticipated breaches of planning control. The respondents to the application were all Gypsies or Travellers. The named Defendants were those known to the Claimant to have control of the various plots of land situated within the Borough near Basingstoke. Martin Spencer J granted the injunction which was then sealed on 22 December 2017 (“the High Court Injunction”). The operative parts restrained the Defendants from causing or permitting any or all of the following:

i) the further deposit of hardcore or other materials on upon (sic) the land marked upon the Plan annexed to this order (“the land”);

ii) works relating to or creating a residential use on the said land;

iii) entry onto the land of any caravans, touring caravans or mobile homes;

iv) the use of any caravans, touring caravans or mobile homes currently present on the said land, save those that are already in use; and/or

v) the taking of any steps in the construction of any day room and the use thereof.

2

The land had actually been divided into 51 individual plots each owned by one of the Defendants. The land comprises an agricultural field lying outside of any settlement boundary. Under the relevant planning controls, the land was protected from development, and in particular residential development, because it lay outside the settlement boundaries and within open countryside. The land was also situated in an identified flood zone.

3

At the time of the injunction, some of these plots had already been occupied by Traveller families and their caravans. Planning permission had not been obtained for residential use. Some families had submitted applications to the Claimant for such permission.

4

The Claimant's intention in applying for the injunction was to preserve the status quo by allowing only the caravans and development present on the land at the time of the injunction to remain there. That status quo would be maintained until the planning applications had been determined.

Prior history

5

An injunction prohibiting the use of some parts of the land for residential purposes had previously been granted by His Honour Judge Everall QC at Reading County Court on 15 August 2014 (“the County Court Injunction”). However, the area covered by the injunction covered only part of the land. In particular, a strip of land to the east of the field and an area of land to the west of the field were omitted from the area covered by the previous injunction.

6

On or around 10 March 2017 two caravans were brought onto Plot 3 on the site along with two other wooden structures and various residential items. The First Defendant stated that he believed that he was not in breach of the County Court Injunction as the caravans were situated at the end of the site which he did not believe was covered by the County Court Injunction.

7

On 1 December 2017, the Claimant wrote to the First Defendant stating that it intended to apply to vary the County Court Injunction and giving 2 months to cease the residential use of the land.

8

Over the weekend of 9–10 December 2017, works were undertaken on plot 6. The works related to the laying of hardstanding and the positioning of caravans on the site. The works that had occurred on site related to the area that was not covered by the County Court Injunction. Three caravans had been located on the site on land that was not covered by the County Court Injunction

9

On 11 December 2017, three copies of the County Court Injunction, addressed to the First Defendant, the occupier and to “persons unknown” were delivered to the site. The Third Defendant was found in occupation of the site along with a further occupier, the Fifth Defendant, who was present on Plot 6. The Fifth Defendant stated that she was living on the site with her husband, the Fourth Defendant. She told the Claimant's planning officer that a planning application had been submitted. The officer explained to the Fifth Defendant the terms of the County Court Injunction and that further works on site may result in a breach of the order and advised that no further works should occur on the site.

10

It was this activity in December that gave rise to concern on behalf of the Claimant that more of the plots might be occupied in breach of planning control over the holiday period and so it applied to the High Court seeking an order preventing this.

11

The injunction application was supported by a witness statement of Mark Fletcher, Principal Planning Officer of the Claimant (“Mr Fletcher”), who set out the full history of the land and the basis on which the injunction was sought.

Service of the Order

12

The High Court Injunction contained the following provisions as to service of the order on “persons unknown”:

“This order may be served, and shall be treated as properly served … by placing the Claim Form, application notice, and injunction in clear plastic envelopes nailed to a stake or gatepost, or other prominent location on the Site.”

Similar provisions provided for service on the identified Defendants by nailing the plastic envelopes on stake or gateposts on plots 3 and 6.

13

The High Court Injunction was served by Mr Fletcher during the afternoon of 22 December 2017, in accordance with the service provisions I have set out. In his witness statement, Mr Fletcher confirmed that the High Court Injunction was displayed at the northern entrance to plot 3, which is immediately adjacent to plot 4.

14

Mr Grigg accepts that the Claimant has served the High Court Injunction in accordance with the service provisions in the order. That does not dispose of the issue of when the High Court Injunction came to the attention of the Applicant.

Occupation of plot 4

15

Mr Fletcher states that, on 2 January 2018, he started to receive reports from members of the public and emails suggesting that a new entrance had been created to the land, hardstanding had been deposited and additional caravans had arrived. Prior to that, reports were made to a local Parish Council Clerk on 30 December 2017 about trees being cut down and the siting of caravans.

16

As a result of that, he undertook a site visit on 2 January 2018 and established that an entrance had been created to plot 4 on which were now situated a number of caravans. A further site visit took place 4 January 2018 with the Claimant's Gypsy Liaison Officer to assess the works that developments works that had occurred on plot 4. It appeared that the new entrance had been created by the filling in of a bank and the importation of hard standing to allow access to the piece of land from the adjoining lane. Trees had been removed in order to allow the creation of this access. Hardstanding had been brought onto the site, 3 caravans had been positioned there and a structure been erected.

17

It is Mr Fletcher's evidence that he spoke to a woman who was present on plot 4 who said that her family (including the Applicant) had moved onto the plot on 25–26 December 2017. Mr Fletcher expresses doubt as to the correctness of the date as no activity was reported prior to the 30 December 2017. It is submitted by the Claimant that public concern was such that, had the activity described taken place earlier, then it would have been reported by member of the public.

Application to vary the High Court Injunction

18

By Application Notice dated 12 January 2018, the Applicant, MMT, applied to vary the High Court Injunction. It appears that the Applicant was at this stage acting in person. He made reference in the Application Notice to his having sought pro bono advice at the Royal Courts of Justice. In the evidence section of the Application Notice, he explained that he had moved onto plot 4 on 22 December 2017 and his family (including his mother and sister) moved onto the land on 26 December 2017. He stated that he had applied for planning permission on 2 January 2018 to site 3 caravans on the plot for residential use. He added that his mother was unwell and required a permanent place to live and had what he described as “life threatening” medical conditions.

19

The Application Notice did not set out the variation of the High Court Injunction he sought (although it can clearly be inferred that he wished to vary it to permit his continued occupation of plot 4). At this stage, the Applicant provided no other evidence beyond that stated on the Application Notice.

20

It was not until 1 February 2018 that further witness statements were provided by the Applicant.

i) The Applicant provided a witness statement dated 1 February 2018. In relation to his family's history: “ We have never been able to find either a Local Authority site or land of our own and this has become increasingly desperate as the years have gone by.” He stated that he purchased the plot on 16 December 2017, borrowing the money from other family members. He said that he instructed solicitors who had told him that there was no injunction on the front of the land and that the firm had previously acted for people who were already living on the land. He added that he could see, when he purchased the plot, that there were Traveller caravans on an adjoining plot. He stated that he contacted Brian Woods, a planning agent, and asked him...

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