New Forest District Council (Claimant) Mr Eric Owen and Another (Defendants HQ12X02365) (3) Mr Stephen Malem (Defendant HQ12X02423) (4) Mr Mark Greenshields and Another (Defendants HQ12X02424)
| Jurisdiction | England & Wales |
| Judge | HH Judge Anthony Thornton QC |
| Judgment Date | 22 February 2013 |
| Neutral Citation | [2013] EWHC 265 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case Nos: HQ12X02365 HQ12X02424 |
| Date | 22 February 2013 |
[2013] EWHC 265 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HH Judge Anthony Thornton QC
Case Nos: HQ12X02365
HQ12X02423
HQ12X02424
Mr Paul Brown QC and Ms Lisa Busch (instructed by Legal and Democratic Services, New Forest District Council) represented the Claimant
Mrs Jane Owen represented herself and, with the permission of the court, represented Mr Eric Owen
Mr James Dirks, with the permission of the court, represented Mr Stephen Malem as a lay representative
Mrs Kim Greenshields represented herself and, with the permission of the court, represented Mr Mark Greenshields
HIS HONOUR JUDGE THORNTON QC
A. Introduction
(1) General introduction
This judgment is concerned with applications for injunctions in three separate part 8 claims which were issued separately in June 2012 but are closely related and were heard together. The claimant is New Forest District Council ("NFDC"). It is the local planning authority for the area of Hampshire that includes Merryfield Park, Bransgore, Hants ("the site") which was the site of RAF Sopley Camp until it was closed in 1974. The site, save for two units on its eastern edge, is now owned by a partnership or joint venture comprising three members of the Baily family and a company called Peter Hilton (Wickham) limited ("the co-owners") who run the site as a training activity centre. Both the site and the co-owners' business are known as Merryfield Park and about 100 units that were originally constructed to form the RAF camp remain on the site. These were all constructed as military-style single-storey buildings within the site and were and are still linked by an interconnecting system of roads and footways. The site has been subject to Green Belt policies since 1958 and it became part of the Green Belt when this was subsequently established by NFDC.
(2) The relief sought
NFDC is claiming injunctions against Mr and Mrs Owen ("the Owens"), Mr and Mrs Greenshields ("the Greenshields") and Mr Malem that would require them to cease using, respectively, units 92, 93 and 91 for residential purposes and to remove all personal belongings associated with their residential use of these units in breach of a planning enforcement notice dated 27 September 1995 ("EN"). Each claim is made under section 187B of the Town and Country Planning Act 1990 ("TCPA") and these applications are seeking the injunctions as permanent injunctions or as interim injunctions until trial or further order on the basis that none of the defendants has a defence to the claim against them.
Section 187B of the TCPA provides that:
"187B Injunctions restraining breaches of planning control.
(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."
Section 187B is in wide terms since it authorises a local planning authority to seek, and a court to grant, a permanent or interim injunction in either mandatory or negative terms to prevent or put an end to any breach or threatened future breach of planning control. The injunction may be granted against anyone involved in the actual or threatened breach including the site owner or occupier and any participant in the breach. The injunction may be sought by way of a Part 7 claim or by way of a Part 8 claim if the claim is unlikely to involve a substantial dispute of fact. The powers to apply for and to grant injunctions that are provided for by section 187B are intended to support a local planning authority's use of its enforcement powers to ensure compliance with planning legislation and its obligations to protect the environment.
(3) Procedural matters
In these cases, NFDC considers that the defendants' breaches in using their respective units for residential use are both obvious and without justification and that it has made repeated but unsuccessful attempts to persuade the defendants to desist from their unlawful use of their respective units for residential purposes so that it now has no alternative but to seek injunctions which can be enforced if necessary by compulsory action. It has therefore issued its claims as Part 8 claims and is now seeking what is in effect summary judgment for mandatory injunctions against each defendant without the necessity of incurring the time and cost of full trials. In the alternative, it is seeking interim injunctions until a full trial or further order.
NFDC is perfectly entitled to adopt this procedure since, although it is seeking permanent injunctions which are mandatory in form, Mr Paul Brown QC, who represented NFDC with Ms Lisa Busch, accepted that injunctions of this type should only be granted if the defendants have no reasonable prospects of succeeding in their respective defences at a full trial.
None of the defendants has been legally represented at any stage in this dispute and they were not legally represented at the hearing. It became clear during the hearing that each defendant has a number of potentially successful defences but since the Part 8 procedure does not provide for defences to be served and there has been no order for the service of witness statements before the hearing, the nature and extent of these defences has required considerable investigation by me. Since I have decided that each defendant has several potentially successful grounds of defence which they never developed before the hearing to claims which NFDC has always regarded as being clear cut and without any prospect of being defended, I have had to provide an unusually full and detailed judgment which declines to grant either summary judgment for final injunctions and or interim injunctions until trial.
Procedurally, therefore, this judgment merely decides that there are reasonable prospects of the defendants succeeding at a full trial so that the applications for summary judgment and for the grant interim injunctions on an American Cyanimide1 basis are dismissed. I am not in this judgment deciding whether any of the potential grounds of defence succeeds and any views I express as to the merits of the claims or the potential defences are not binding on the parties save and to the extent of explaining why the claims must go forward for a full trial unless they are settled, stayed, dismissed hereafter or withdrawn.
(4) Representation and the hearing
Mrs Owen applied to me for permission to represent both herself and Mr Owen at the hearing and, likewise, Mrs Greenshields applied for permission to represent both herself and Mr Greenshields. I granted both applications.
Mr James Dirks, a retired solicitor who had never possessed higher courts rights of audience, attended the hearing as Mr Malem's McKenzie friend but when the applications were called on, he
applied for permission to represent him as a lay advocate. His grounds for making that application were that Mr Malem was extremely anxious and nervous about speaking in court and also suffered from a disability which made it very difficult for him to represent himself. Mr James Dirks explained that he was a friend of Mr Malem and was fully retired and that he had given him informal advice and assistance about his defence to NFDC's claim. In those circumstances, I granted him permission to represent Mr Malem at the hearing.The applications were argued over 1 1/2 days with a 3-week interval between the first and second days. Each application was supported by voluminous evidence and each defendant served evidence and written submissions. On the first day, which lasted for about 3 hours, Mr Brown QC made detailed oral submissions and these were followed by very brief submissions by and on behalf of the defendants. The hearing was then adjourned for 3 weeks during which period the defendants served further evidence and submissions. On the second day of the hearing, which lasted a full day, Ms Busch responded on behalf of NFDC to the further materials that had been served since the first day and Mrs Owen, Mrs Greenshields and Mr Dirks then developed lengthy oral submissions in support of the various defences now being advanced.
(5) The decision
I have decided, having considered all the material presented to me with some care, that it is not appropriate to grant final or interim injunctions against the Owens, the Greenshields or Mr Malem. If NFDC wish to continue to seek injunctions against the defendants, it must do so by proceeding to a full trial. If NFDC wishes to pursue its claims to trial, the particular claim or claims in question should not proceed as Part 8 claims but as a normal high court claim appropriately case managed by the Master that leads to a witness action with appropriate cross-examination of relevant witnesses.
I have set out my reasons for my decision in parts as follows:
(1) Part B: The essential factual background to the claim (paragraphs 14–24).
(2) Part C: Summary of parties' cases (paragraphs 25–46).
(3) Part D: The relevant planning history of the site (paragraphs 47–85).
(4) Part E: Issues discussed (paragraphs 86–171).
(5) Part F: The Owens' defence (paragraphs 172–194).
(6) Part G: The Greenshields' defence (paragraphs 195–217).
(7) Part H: Mr Malem's defence (paragraphs 218–220).
(8) Part I: The procedural...
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Planning Permission
...Belt. See also South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 and New Forest District Council v Owen [2013] EWHC 265 (QB). Generally, an applicant’s personal circumstances will not carry much weight, as the planning system is based on development plans where ......
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Planning Permission
...belt. See also South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953 and New Forest District Council v Owen [2013] EWHC 265 (QB). Generally, an applicant’s personal circumstances will not carry much weight as the planning system is based on development plans where t......