Dartford Borough Council v Coates
| Jurisdiction | England & Wales |
| Judge | Lady Justice Hallett,Lord Justice McFarlane |
| Judgment Date | 08 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1707 |
| Date | 08 November 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2012/2494 |
[2012] EWCA Civ 1707
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CANTERBURY COUNTY COURT
(HIS HONOUR JUDGE SIMPKISS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett
And
Lord Justice McFarlane
Case No: B2/2012/2494
Mr Tim Jones (instructed by The Community Law Partnership) appeared on behalf of the Appellant.
Ms Caroline Bolton (instructed by Sharpe Pritchard) appeared on behalf of the Respondent.
This is an appeal, in which permission to appeal is not required, from an order made by HHJ Simpkiss on 12 September 2012 whereby he ordered Mrs Sarah Coates to be sentenced to 28 days in prison, suspended until 12 October 2012. The suspension of the sentence was on condition she complied with injunctions obtained by the respondent council on 7 July 2011 and varied by order of the court in August 2011 and October 2011.
On Tuesday of this week we refused an adjournment requested by Mr Jones on behalf of Mrs Coates because full transcripts were not available of the hearing and the judgment. My Lord and I concluded that it was important to have this matter resolved and that sufficient time had elapsed between the making of the order and this application being heard. This is, after all, an application which relates to the liberty of the subject.
HHJ Simpkiss found the appellant to be in contempt of court for breach of an injunction order made by HHJ Hammerton sitting in the Dartford County Court in July 2011. The injunction order prohibits residential occupation of the land known as The Stables, Station Road, Sutton at Hone, Dartford. At the time the injunction was first made it was targeted at a number of named individuals, which did not include Mrs Coates, and "persons unknown". One caravan was permitted on site. Ms Bolton for the local council has provided a description of the land. She described it as being within the Green Belt on a site of potential archaeological interest. The Environment Agency has confirmed to the council for whom she acts that it would probably object to any application for planning permission and the use of the land could cause environmental harm. The appellant concedes that her residential use of the land at present is a breach of planning control but says that she hopes to appeal successfully the refusal of planning permission for change of use.
Mrs Coates in fact bought the land from a Mr Gaffney, to whom the original injunction had been specifically addressed. Until she bought the land in May 2012 she had been living in recent years in a caravan at her parents' property. However, she moved on to the land on 12 May 2012 with her children, one of whom is severely disabled. She claimed that she was unaware of the injunction until the local council informed her on 12 May this existed. She accepted she was informed again on the 14 th and then again on 18 May 2012. Albeit the original injunction would have applied to her because it was targeted at "persons unknown", for the avoidance of doubt she was made a party to the litigation soon afterwards.
Mrs Coates, when confronted with the injunction, declined to leave, saying she had nowhere else to go. She has stayed in occupation despite the injunction and a hearing on 11 July 2012 at which HHJ Cameron found against her in the clearest possible terms, rejecting inter alia her assertion that she had nowhere else to go. She was refused permission to appeal and sought permission and a stay from the High Court. At the time of the hearing before HHJ Simpkiss and before us the applications remain unresolved, because, as Mr Jones explained, Mrs Coates's solicitors have been having difficulties in extracting from the county court a transcript of the judgment of HHJ Cameron to place before the High Court.
Mr Jones acknowledged that the appellant was in breach of the injunction. He also informed us that at the hearing before HHJ Simpkiss no oral evidence was called albeit there were statements from Mrs Coates before him. The hearing began with an application for an adjournment pending Mrs Coates' attempt to appeal the injunction and to rectify her planning status. HHJ Simpkiss had a very full list and at one stage was concerned about the length of time that the hearing was likely to take. However, having heard submissions from both counsel, he eventually decided not to adjourn and he continued with the hearing, ensuring that other cases in his list were put off to either another court or another day.
During the hearing HHJ Simpkiss was confronted with a wide-ranging attack by Mr Jones on the findings made by HHJ Cameron. Mr Jones insisted that they were relevant to the issues before HHJ Simpkiss as to whether or not Mrs Coates was in wilful breach of the order: in other words, whether it was possible for her to comply with it. He argued that she had nowhere else to go and therefore she could not be described as being in wilful breach. He referred the judge to Mrs Coates' ethnicity and lifestyle and emphasised the importance to her of not being housed in bricks and mortar. He also properly brought to the judge's attention the difficulties that Mrs Coates faces in looking after her children, in particular her disabled child, as a single mother.
Despite what were no doubt powerful submissions by Mr Jones, the judge was satisfied that there was a deliberate breach and he ordered that Mrs Coates was in contempt of court by remaining in residential occupation of the land and he sentenced her to the 28 days suspended to which I have already referred.
The law appears to be common ground. A number of provisions of the European Convention on Human Rights are potentially in play here. The members of this court are extraordinarily familiar with them and so I do not need to rehearse them in the course of this short extempore judgment. In particular I have very much in mind the provisions of Article 8 of the Convention and the provisions of the First Protocol of Article 1. Mr Jones was entitled to rely upon the First Protocol of Article 1, because the land in question belongs to Mrs Coates. She is not, he emphasised, and I readily accept (as did HHJ Simpkiss), a trespasser.
It is also common ground that the burden of proof was on the council, in an application to commit a defendant to prison for contempt of court, to prove that the appellant was in deliberate breach of an order of the court. The standard of proof to be applied was the criminal standard: the judge had to be satisfied that he was sure that there was a deliberate breach.
Mr Jones also invited our attention to the decision in South Bucks DC v Porter [2003] 2 AC 558 in which the court had been confronted with applications for injunctive relief under the planning regime. The House of Lords emphasised that, in deciding whether or not to grant such relief, the court is far from a rubber stamp. In typically wise words, Lord Bingham observed that the court must have regard to all relevant circumstances including the personal circumstances of the person to be made subject of the injunction and that it was essential that that an individual's Convention rights should be given proper consideration. Ms Bolton did not appear to contradict the importance of a full and fair consideration of an individual's Convention rights when deciding whether or not to grant injunctive relief, but brought to our attention the fact that these matters had been considered very fully before HHJ Cameron.
She also referred us to the recent decision in Broxbourne Borough Council v Robb [2011] EWCA Civ 1355, which she argued provided a clear ratio that it is no defence to a committal application for a Romany gypsy, even one with young children, to claim they have nowhere else to go after they have been ordered to leave land which they occupy in breach of planning control.
Mr Jones, asked whether he accepted that this was indeed the ratio of Broxbourne, was prepared to agree subject to qualification of the word "defence". He sought to insert the word "automatic" before it so that the ratio would read :
"It is not an automatic defence to a committal application for a Romany gypsy to claim they have nowhere else to go."
Further, he sought to distinguish the facts of Broxbourne from the facts here. He observed that the individual concerned in Broxbourne had deliberately moved on to the land in breach of an order and he had done nothing to find himself alternative accommodation. Mr Jones was anxious to assure the court that that was not the situation here and that Mrs Coates was in complete ignorance of the injunction when she moved onto the land. She would not be in the position she is today were it not for the consistent failings, as he would have it, of the local authorities to comply with their statutory duty to provide a sufficient allocation of land for residential use by Romany gypsies.
Ms Bolton further relied upon the decision in Sheridan v Basildon Borough Council [2012] EWCA Civ 335—a housing case in which it was held that the offer of bricks and mortar...
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