Davis and Others v Tonbridge and Malling Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE STANLEY BURNTON,Mr Justice Stanley Burnton |
| Judgment Date | 14 May 2003 |
| Neutral Citation | [2003] EWHC 1069 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ0006528 |
| Date | 14 May 2003 |
[2003] EWHC 1069 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Stanley Burnton
Case No: HQ0006528
Philip Kolvin (instructed by Sharpe Pritchard) for the Claimant
Richard Drabble QC and Daniel Kolinsky (instructed by Clarke Willmott) for the Defendants
Hearing dates: 14 and 15 April 2003
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 he treated as authentic.
INTRODUCTION
The area of land comprising 6.11 hectares north of Sotts Hall Cottage, Crouch Lane, Platt in Kent is within the area of Tonbridge and Malling Borough Council. I shall refer to that land as "the site". It is identified in the plan annexed to the order in these proceedings made by Gray J on 5 March 2003 at page 14 of file I of the trial bundle. The permitted user of the site under Town and Country Planning legislation is agricultural.
The Defendants are the owners and occupiers of plots on the site. They are travelling showmen. They and their families occupy their plots as their homes. They have with them the lorries, vans and other transport and the substantial equipment that they use for their trade. Their occupation of the site, and the works that they have carried out on the site, are in breach of Town and Country Planning legislation.
In these proceedings the Council claims an injunction, pursuant to section 187B of the Town and Country Planning Act 1990, restraining the Defendants from continuing to occupy and to use the site in breach of planning control.
The Defendants oppose the grant of relief. They point out, as is accepted by the Council, that the Council's claim engages their rights under Article 8 of the European Convention on Human Rights. They point out that most of them have no alternative home: if precluded from occupying the site, they have nowhere to go. They ask the court to refuse the grant of injunction in the exercise of its discretion.
The Defendants sought planning permission fur their occupation and use of the site. The Council refused planning permission, and served an enforcement notice. The Defendants appealed against the Council's refusal of planning permission and the enforcement notice. A public enquiry was held between 4 and 7 September 2001. Mr Christopher Craig, the Inspector appointed by the Secretary of State for the Environment, transport and the Regions, reported to him on 3 October 2001. He considered the merits of the Defendants development of the site from the point of view of planning control, and the Defendants' individual countervailing rights under Article 8(1) of the European Convention on Human Rights. He recommended that the appeal against the refusal of planning permission be dismissed, and that the enforcement notice be upheld, but varied to increase the period for compliance to 12 months. By letter dated 5 December 2001, the Secretary of State informed the Defendants that he accepted the recommendations of his inspector. Accordingly, he upheld the enforcement notice as varied and dismissed the Defendants appeals against it and the refusal of planning permission.
The period of one year for compliance with the enforcement notice has now expired. It follows that, apart from the Convention, the continuing occupation and use of the site by the Defendants is unlawful and liable to criminal sanctions under section 179 of the Town and Country Planning Act 1990. and that, subject to the same qualification, by virtue of section 178 of that Act the Council may lawfully enter the site and itself take the steps required by the notice.
THE LAW
Article 8.1 of the European Convention on human Rights is as follows:
"Everyone has the right to respect for his private and family life, his home and his correspondence.
However, this right is qualified by Article 8.2:
"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
It is clear that planning control may justify interference with rights under Article 8.1: see, e.g., Chapman v UK (2001) 33 EHRR 399.
In South Buckinghamshire District Council v Porter [2001] EWCA Civ 1549, [2002] 1 WLR 1359, the Court of Appeal considered the approach which should be adopted by the Court when considering an application for an injunction in a case such as the present. The Court held that the grant of an injunction was not a necessary or inevitable response to an application by a local authority to enforce planning restrictions. The principles applicable were stated by Simon Brown LJ in a judgment with which the other members of the Court agreed. H said:
"38. … It seems to me perfectly clear that the judge on a s.187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, "entirely foreclosed" at the injunction stage. Questions of the family's health and education will inevitably be of relevance, but so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be sonic urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.
39. Relevant too will be the local authority's decision under s.187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.
40. Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so. whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
41. True it is, as Mr McCracken (counsel for one of the local authorities) points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be "commensurate" in today's language, proportionate. The Hambleton approach (i.e., that of the Court of Appeal in Hambleton District Council v Bird [1995] 3 PLR 8) seems to me difficult to reconcile with that Circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coining into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under s. 6(1) to act compatibly with Convention rights....
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