London Borough of Havering v William Stokes

Hearing date: 19 th October 2022 Further submissions: 9 th December 2022, 23 rd February 2024, and 30 th May 2024

Further evidence: 17 th June 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives.

THE HONOURABLE Mr Justice Martin Spencer

Introduction .

The Claimant is the council and local planning authority for the borough of Havering (“the Borough”) which covers some 44 square miles in the north-east of Greater London. The Claimant is seeking to address by way of precautionary injunction the problems arising from unauthorised traveller encampments and in particular those associated with fly-tipping. It is to be noted at the outset that, as I will explain more fully below, the Claimant proceeds on the footing that this behaviour is engaged in only by an unrepresentative minority of members of the Traveller and Gypsy communities. The Claimant obtained an interim injunction from Pepperall J on 12 ^th September 2019 and the matter came before me on the final hearing of the Claimant's application.

As originally formulated the claim was brought against 105 named defendants together with persons unknown. The claim has been discontinued against 54 of the named defendants and now continues against the remaining 51 together with persons unknown. The Claimant says that it can show that each of the remaining named defendants participated in one or more unlawful encampments in the Borough in the period from July 2016 to July 2019 and relies on this together with the nature of the encampments in question as the principal basis for saying that there is a sufficient risk of the repetition of such conduct by those defendants to warrant the grant of an injunction against them. It is said that the court can infer that those defendants participated in the unauthorised encampments because in each of their cases a vehicle of which they were either the registered keeper or an insured driver was identified as having been at one or more of such encampments. In respect of some of them there are additional matters on which the Claimant relies to show such participation. Against those defendants a borough-wide order is sought in the terms I will consider below.

The Claimant points out it has not identified all the vehicles and persons which had been present at unauthorised encampments in the Borough during the three-year period leading up to July 2019 and says that the Named Defendants are only a minority of those who were present at such sites. It is for that reason that the Claimant seeks relief against persons unknown saying that there is sufficient risk of unauthorised encampments by persons other than the Named Defendants for such relief to be granted. However, in respect of persons unknown the relief sought is not a borough-wide injunction of the type sought against the Named Defendants but rather an injunction restraining entry on to any of a list of 306 named sites.

The hearing in this matter was on 19 ^th October 2022. However, in November 2022 the Claimant learnt that the Supreme Court was to hear the case of Wolverhampton City Council & others v London Gypsies and Travellers and others [2023] UKSC 47, [2024] 2 WLR 45. On application by the Claimant, I then paused work on the judgment which was partially prepared and gave directions for further submissions to be made after the handing down of judgment in the Supreme Court. That court heard submissions on 8 ^th and 9 ^th February 2023 and handed down judgment on 29 ^th November 2023. I received further submissions in February 2024. Having reflected on those I made directions for the provision of further evidence in respect of the current circumstances and for submissions thereon. I received that evidence on 17 ^th June 2024 (the submissions having been received at the end of May 2024).

The Legislative Background .

The Claimant brings these proceedings in exercise of its power under section 222 of the Local Government Act 1972 to bring legal proceedings in its own name as local authority where it considers such a course “expedient for the promotion or protection of the interests of the inhabitants” of its area. Section 222 does not create a new or separate cause of action vested in the relevant local authority but does permit it to bring proceedings in its own name.

In the Claim Form the Claimant invoked section 187B of the Town and Country Planning Act 1990 and section 1 of the Anti-Social Behaviour, Crime and Policing Act 2014. It no longer relies on the latter but instead focuses on the former. The contention is that the forming of encampments and engaging in fly-tipping are development for the purposes of section 55 of the 1990 Act and, having been undertaken without planning permission, are breaches of planning control. It is in those circumstances that the Claimant says an injunction under section 187B is to be granted.

The relevant provisions of the 1990 Act are as follows.

Section 55(1) and (3) which address the meaning of development thus:

(1) Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any building or other land.

(1A) For the purposes of this Act “ building operations” includes –

(a) demolition of buildings;

(b) rebuilding;

(c) structural alterations of or additions to buildings; and

(d) other operations normally undertaken by a person carrying on business as a builder.

(3) For the avoidance of doubt it is hereby declared that for the purposes of this section –

(a) the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used…

(b) the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if –

(i) the superficial area of the deposit is extended, or

(ii) the height of the deposit is extended and exceeds the level of the land adjoining the site.

Section 57(1) which provides that planning permission is “required for “the carrying out of any development of land”.

Section 187B which provides:

(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.

(3) Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this section “the court” means the High Court or the county court”

The approach to be taken when an injunction is sought under section 187B was explained in South Buckinghamshire DC v Porter [2003] UKHL 26, [2003] 2 AC 558. The question of whether the conduct in question is a breach of planning control will be a matter for the local authority and not the court. However, the decision as to whether an injunction should be granted remains a matter for the court's discretion having regard to the circumstances of the case as a whole. It follows from the decision in Wolverhampton v London Gypsies and Travellers that the court's discretion in a case where the application is for an injunction against persons unknown which has the prospect of affecting the lives of members of the Traveller or Gypsy communities then that discretion is to be exercised in accordance with the approach set out there.

Where an injunction is granted on a local authority's application pursuant to its section 222 power then section 27 of the Police and Justice Act 2006 enables the court to attach a power of arrest in the following circumstances as provided for by subsections (2) and (3):

“(2) If the court grants an injunction which prohibits conduct which is capable of causing nuisance or annoyance to a person it may, if subsection (3) applies, attach a power of arrest to any provision of the injunction.

(3) This subsection applied if the local authority applies to the court to attach the power of arrest and the court thinks that either—

(a) the conduct mentioned in subsection (2) consists of or includes the use or threatened use of violence, or

(b) there is a significant risk of harm to the person mentioned in that subsection.”

Section 77 of the Criminal Justice and Public Order Act 1994 empowers a local authority to direct persons residing in a vehicle or vehicles on a highway or on unoccupied land or on occupied land without the occupier's consent to leave that land. If a person subject to such a direction fails to comply with it the local authority can apply on 24 hours' notice to the magistrates court for an order for the removal of such persons. The direction and any consequent order prohibit the return to the site in question of the persons subject...