Davis and Others v Tonbridge and Malling Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld,Lady Justice Arden,Lord Justice Jacob |
| Judgment Date | 26 February 2004 |
| Neutral Citation | [2004] EWCA Civ 194 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2003/1260 |
| Date | 26 February 2004 |
[2004] EWCA Civ 194
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
THE HON. MR. JUSTICE STANLEY BURNTON
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Auld
Lady Justice Arden and
Lord Justice Jacob
Case No: A2/2003/1260
Mr Richard Drabble QC and Mr Daniel Kolinsky (instructed by Charter & Law Solicitors) for the Appellants
Mr Simon Bird (instructed by Sharpe Pritchard) for the Respondent
The appellants, who are a group of fairground operators, known as "travelling showmen", and sometimes as "travelling show-people", appeal with the permission of Sedley LJ, from an order of Stanley Burnton J on 14 th May 2003 granting the respondent, the Tonbridge & Malling Borough Council, the relevant planning authority, injunctive relief under section 187B of the Town and Country Planning Act 1990 in respect of their occupation in breach of planning control of a six hectares field that they owned north of Sotts Hole Cottage, Crouch Lane, Platt in Kent.
As the question of the entitlement of the Council to injunctive relief against the appellants is at the heart of the appeal, I should set out straightaway the provisions of section 187B of the 1990 Act:.
(1) Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part.
(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.
…"
Prior to the appellants' occupation of the site, it was agricultural land. It is part of a swathe of open countryside, bounded by footpaths on two sides. It is set in the Green Belt and is part of a designated Special Landscape Area. Its use by the appellants is contrary to the Council's development plan policies which, in accordance with national planning policy, confer special protection against non-conforming use of land in the Green Belt and of such designation. The sole means of vehicular access to the site is along Crouch Lane, which, though largely straight along the frontage of the site, is for much of its length a narrow, winding country lane, confined with steep-sided banks and with trees and foliage overhanging it. It is unsuitable for large vehicles towing trailers and heavy goods vehicles.
Lyn Marie Davis, the first appellant, purchased the site in about November 2000. At about the same time, she and all or some of the other appellants, without notice to the Council and knowingly in breach of planning control, brought onto it their caravans and fairground equipment and began to fence and lay hardcore for access drives and parking areas. They have continued to use and develop the site in that way ever since, notwithstanding service on them of a number of enforcement notices which have been upheld by the Secretary of State on appeal and in respect of which the time for compliance has long since expired.
At the time of the proceedings before the Judge the site had been divided into 19 plots, 16 of which other appellants had purchased. All or most of the plots had been fenced off, and a significant part of the site was by then given over to access drives and hard-standing for the appellants' heavy vehicles, fairground rides, stalls and associated machinery. Some of the plots are empty or have little on them. Others have a great deal. For example, Mrs. Davis's plot at the time of the application to the Judge had on it five trailers, a garden shed, two storage units, a big caravan, two touring caravans, four cars, seven lorries, a steel-framed workshop, a generator and some fairground rides and other attractions. In appearance, the appellants' occupation of the site constitutes a small settlement, but it is a well spread one, since the site is substantially larger than is necessary to meet their needs.
Travelling Show-people
Travelling show-people, as I shall call them throughout this judgment, have a long established place in English life. Their special pattern and rhythm of work has given them a distinct cultural identity, for which provision is made in national and local planning policies. On 6 th December 1991 the Department of the Environment and the Welsh Office issued identical Circulars, respectively nos. 21/91 and 78/91, giving advice to local authorities about planning considerations for travelling show-people. Circular 21/91 described them and their way of life as follows:
"2. They are self-employed business people who travel the country holding fairs, chiefly during the summer months. Although their work is of a peripatetic nature, show-people nevertheless require secure, permanent bases for the storage of their equipment and more particularly for residential purposes. Such bases are most intensively occupied during the winter, when many show-people will return there with their caravans, vehicles and fairground equipment. For this reason, these sites traditionally have been referred to as 'winter quarters'. But increasingly show-people's quarters need to be occupied by some members of the family permanently; older family members will stay on for most of the year and there are plainly advantages in children living there all year to benefit from uninterrupted education."
"4. The nature of show-people's sites is unusual in planning terms. The sites illustrate the show-people's characteristic self-sufficiency by combing residential, storage and maintenance uses. Typically a site comprises areas set aside for the show-people's accommodation – usually caravans and mobile homes – and areas where vehicles and fairground equipment can be stored, repaired and tested. This means that the sites do not fit easily into the existing land-use categories. Some of the difficulties show-people have experienced with the planning system can be attributed to this."
However, the cultural identity of travelling show-people and their status, as a matter of planning law and policy, should not be confused with those of gypsies, for whom quite distinct provision is made; see e.g. Wrexham CBC v. Berry & Berry and The National Assembly of Wales [2003] EWCA Civ 835. Circular 22/91, in paragraph 3 identified some of those distinctions:
"3. Most show-people are members of the Show-people's Guild of Great Britain and are required by the Guild to follow a code of practice on the use of their sites. Membership of the Guild provides show-people with exemption from the site licensing requirements of the Caravan sites and Control of Development Act 1960 when they are travelling for the purpose of their business, or where they occupy quarters for some period between the beginning of October and the end of March in the following year. However, they only enjoy permitted development rights under Part 5 of Schedule 2 to the Town and Country Planning General Development Order 1988 when travelling for the purpose of their business. They are therefore required to seek planning permission to establish all other sites. Furthermore, since show-people are specifically excluded from the definition of gypsies under the Caravan Sites Act 1968, they do not benefit from the duty on local authorities under that legislation to provide gypsy accommodation."
Whatever the distinctions to be drawn between gypsies and travelling show-people in terms of planning law and policy, it is plain that both groups have experienced similar difficulties over the years in matching their respective life-styles to modern-day conditions and to the often conflicting interests of the public at large, for both of which planning law and policy is intended to provide a fair balance. Circular 22/91, in paragraph 5, acknowledged an increase in the difficulties in striking the correct balance whilst avoiding hardship to show-people:
"5. In recent years many show-people have had to leave traditional sites which have been displaced by other forms of development, sometimes following compulsory purchase. Some show-people have had considerable difficulty in obtaining alternative sites with planning permission. This has caused overcrowding on some sites, and caused some show-people to leave their home areas in attempts to find alternative sites – not always successfully. The problems show-people have experienced in obtaining planning approval for their sites have led them sometimes to occupy land in breach of planning control, resulting in lengthy enforcement proceedings. This jeopardises the show-people's livelihoods, and entails considerable cost to local planning authorities. The Government urges local planning authorities to pay close attention to this guidance with the aim of avoiding such conflict in the future".
Circular 22/91, in paragraph 6, went on to advise local authorities: to consider the needs of travelling show-people when preparing their local and unitary development plans; to identify existing sites with planning permission and realistically to assess the amount of accommodation required; and, where there has been a local tradition of occupation by show-people and/or a need for it, to make specific proposals for suitable locations.
Despite this guidance, the difficulties for show-people have continued. Nearly a decade after Circular 22/91, the Select Committee on Environment, Transport and Regional Affairs, in its 9 th Report issued in June 2000, concluded that their needs –...
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