Doncaster Metropolitan Borough Council v AC and Others
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] EWHC 45 (QB) |
| Court | Queen's Bench Division |
| Date | 18 January 2013 |
| Docket Number | Case No: HQ12X03558, IHQ/12/0665 |
[2013] EWHC 45 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London WC2A 2LL
Mr Richard Salter QC
Sitting as a Deputy Judge of the Queen's Bench Division
Case No: HQ12X03558, IHQ/12/0665
Ms Saira Kabir Sheikh (instructed by Sharpe Pritchard) appeared for the Claimants
Mr Alan B R Masters (instructed by Lester Morrill incorporating Davies Gore Lomax) appeared for the Defendants
Hearing dates: 17, 20 December 2012, 18 January 2013
Mr Salter QC:
Introduction
This is a claim by Doncaster Metropolitan Borough Council ("the Council"). The Council is the local planning authority for an area which includes a site (which the Defendants call "Waterstone Lane") covering approximately 0.4 hectares to the north of Moss Road, Askern, Doncaster. In this Judgment, I shall refer to this site as "the Waterstone Lane Site", or simply as "the Site". By this action, the Council seeks the grant of an injunction under the Town and Country Planning Act 1990 s 187(B) to restrain actual and apprehended breaches of planning control in relation to the Waterstone Lane Site. As I shall explain in more detail later in this Judgment, the Defendants to the Council's claim are members of the Gypsy and Traveller communities, who are (variously) the present owners and occupiers of the Waterstone Lane Site.
Anonymity Order
Although this judgment is concerned with an application for an injunction under the Town and Country Planning Act 1990 s 187(B), it involves in certain sections a detailed discussion of the personal circumstances of six families who, between them, have 15 children (of whom 12 are under the age of 18). In my judgment, it is not in the best interests of these children for them to be publicly named or for them to be identifiable by anyone reading this judgment or any report of it. Since the children will be readily identifiable if their parents, the defendants to this application, are named, it is necessary that the adults involved also should not be named or be identifiable.
In exercise of my powers under CPR 39.2(4) and under the Children and Young Persons Act 1933 s 39, and having regard to the principles laid down in the cases of In re S (A Child) (Identification: Restrictions on Publication)1, and Re Guardian News and Media Ltd2, I therefore direct that:
(1) The Defendants are to be named and known by initials for all purposes in connection with these proceedings and this judgment and, as follows:
(a) The First and Second Defendants: AC and BC
(b) The Third Defendant, DE
(c) The Fourth Defendant, FG
(d) The Fifth Defendant, HI
(e) The Sixth and Seventh Defendant, JL and KL
(f) The Eighth and Ninth Defendant, MO and NO
(g) The Tenth Defendant, PQ.
(2) No newspaper report of the proceedings shall reveal the name, address or school, or include any particulars calculated to lead to the identification, of any of the children concerned in this application.
Background
The Waterstone Lane Site is in the countryside, in the Green Belt surrounding Doncaster. From the 1950s until about 1997, it formed part of a larger waste water treatment works. However, in about 1997, that use ceased (though a small pumping station owned by Yorkshire Water remains on adjacent land to the North East of the Site). The Site was re-grassed and left as scrubland. In April 2009, the Site was bought from Yorkshire Water by the father of the AC, the First Defendant. AC's father is a person who is well-known to the Council as a member of the Gypsy and Traveller community and as a leading advocate for their rights. In about July 2009, the Site was turned into a Gypsy and Traveller site, divided into six pitches. In March 2010, AC's father sold the six parcels of land making up the Site to six of the Defendants. Eight of the defendants (including four of the owners) are currently living in caravans or mobile homes on the Site.
The defendants do not have (and have never had) planning permission for the use to which they are currently putting the Waterstone Lane Site. No planning permission was sought before the Site was turned into a Traveller site. A retrospective application for planning permission for that use was refused by the Council in January 2010, and appeals against that decision to the Secretary of State and then to the High Court were unsuccessful. The Council has issued an Enforcement Notice which has not been complied with, and has exercised its power under the Town and Country Planning Act 1990 s 70A to decline to determine fresh planning applications (for temporary permission for a reduced number of pitches) which were made in March and December this year.
The defendants, however, invite me to exercise my discretion to refuse to grant the injunction which the Council now seeks. They say that the Council (in breach of its duty under the Housing Act 2004 s 225 and the relevant guidance) has not made a realistic assessment of the need for Traveller sites in its area, and has consequently failed to provide sufficient deliverable sites to meet the need which exists. One practical consequence of that is that, if I grant an injunction to evict the occupants from the Waterstone Lane Site, they will have no alternative pitches to go to, and will end up living by the roadside. This, the defendants say, will have a seriously detrimental effect on them and their children, and will consequently involve a significant and unnecessary interference with their rights and those of their children under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The defendants argue that the grant of an injunction would be a disproportionate response to the breach of planning control involved in their continued use of the site, and would involve the Court not only in a breach of its own obligations under Article 8 and under Article 3(1) of the Convention on the Rights of the Child 1989, but also in lending the Court's assistance to a breach by the Council of the Council's obligations under the Children Act 2004 s 11. To the Council's response that it has offered the defendants suitable alternative housing in an area of the Borough even closer to the schools presently attended by the defendants' children, the defendants reply that it is unreasonable to expect them to exchange their traditional way of life for a life (even temporarily) in bricks and mortar housing.
The defendants support this case by asserting that, because circumstances have changed since the date of their original unsuccessful application, they now have a realistic prospect of obtaining the temporary planning permission for which they have recently attempted to apply. In that connection, the defendants have requested that, if I were not minded to refuse the Council's application for an injunction outright, I should adjourn it to be heard at the same time as an application (which the defendants have told me that they propose to issue) for judicial review of the Council's decision to decline to determine the defendants' most recent planning application. The defendants say, in short, that I should permit them to stay where they are until such time as either they can regularise their position by obtaining planning permission for their present site, or they can move to pitches on another site or sites for which the Council has made planning permission available.
The Facts
The creation of the Site
The factual background to this application (as I find it to be) is as follows. Over the weekend of 25 th and 26 th July 2009, services were laid at the Waterstone Lane Site, the Site was paved with hardcore, and fencing was put up. A central spine road was created, and the Site was sub-divided into 6 pitches, each separated by internal fencing. Families moved onto the Site and began to live there in caravans or mobile homes. The evidence before me does not state who carried out the building works, nor who were the people who went into occupation of the site at that time.
Two days later, on 28 July 2009, the Council sought and obtained from Owen J at a hearing without notice an injunction prohibiting use of any of the land surrounding the Waterstone Lane Site (other than the Site itself) for residential development or for the siting or caravans or mobile homes. The defendants named in that order were (1) AC's father, (2) Christopher Tomkinson, (3) New Progress Housing Association, and (4) Persons Unknown. The purpose of this injunction was to prevent any expansion of the area that had already been occupied, without planning permission, for residential purposes. The injunction granted by Owen J is still in force.
The first application for planning permission
On 19 August 2009, a retrospective application was made to the Council for planning permission to use the Waterstone Lane Site as a private Gypsy caravan site. The Planning Committee of the Council decided to refuse this application at its meeting on 12 January 2010. The reasons given in the Notice of Refusal dated 18 th January 2010 were that:
In the opinion of the Local Planning Authority, the harm caused to the Green Belt by reason of inappropriateness and visual harm is not outweighed by unmet need or any other material considerations and therefore no very special circumstances exist sufficient to justify planning permission even for a temporary period. The application is therefore contrary to Policies ENV3, PH 22 Doncaster Unitary Development Plan (Adopted 1998), PPG 2 Green Belts and Circular 01/2006
The statement in this notice that there were "no very special circumstances .. sufficient to justify planning permission" was a reference (inter alia) to the Planning Policy Guidance No 2 – Green Belts, issued in January 1995 and updated...
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