Oxfordshire CC v Wyatt Bros (Oxford) Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR. JUSTICE BEATSON |
| Judgment Date | 02 November 2005 |
| Neutral Citation | [2005] EWHC 2402 (QB) |
| Docket Number | Case No: HQ05X01761 |
| Court | Queen's Bench Division |
| Date | 02 November 2005 |
[2005] EWHC 2402 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr. Justice Beatson
Case No: HQ05X01761
Mrs H Townsend (instructed by Oxfordshire County Council) for the Claimant
Mr A Alesbury (instructed by Morgan Cole) for the Defendants
Hearing dates: 29–30 September 2005
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 be treated as authentic.
Mr Justice Beatson:
Introduction
By subsections (1) and (2) of section 187B of the Town and Country Planning Act 1990 (hereafter "the TCPA 1990"):
"(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 sub-section (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
In this application Oxfordshire County Council (hereafter "OCC") seeks injunctive relief under section 187B in respect of a continuing breach of planning control arising from the deposit of waste at Waterstock Golf Course, primarily in 1997. The site, located in the green belt outside Oxford, 300 metres south of Waterstock village, is owned by Wyatt Brothers (Oxford) Limited, the first defendant. Michael and Ronald Wyatt, the second and third defendants, are the company's directors. The site is bounded by the River Thame to the north, the M40 to the west, the A418 to the south.
Enforcement notices requiring the first defendant to remove all waste materials from the land and dispose of such materials at a suitably licensed site were served on 23 September, 31 October and 12 November 1997. The last of these applied to all the land of the golf course owned by the first defendant, some 74.5 hectares, and included the land covered by the first two notices. A stop notice was served with it. The first defendant challenged the enforcement notices and, notwithstanding the stop notice and the provisions of section 187 of the TCPA 1990, continued to deposit material on the site. It considered that the material, some of which came from another site being developed as a service area for the M40 motorway and some of which was clay and topsoil extracted on part of the golf course site, was not "waste". It continued to deposit material on the site until February 1998 when an injunction was granted preventing further deposits. I deal with the first defendant's challenge to the enforcement notices later in this judgment (see paragraphs 15–18 below). At this stage it suffices to say that at the appeal before the inspector the terms of the notices were varied and that the challenge finally failed on 26 October 2001 when the Court of Appeal found in favour of OCC.
These proceedings were launched on 29 April 2005 in the Chancery Division. They were transferred to the Queen's Bench Division on 17 June 2005. The claimant seeks an order that the defendants remove all waste materials deposited on the land within a specified area (the tipped area) save insofar as the waste is permitted to remain or is not required to be removed by the requirements of the enforcement notices, and, in so doing return the tipped land to the contours described on a specified plan: 92957/922/002 Rev C. The claimant also seeks an order that the defendants must make lawful arrangements for the disposal of the waste and remove it in accordance with those arrangements, prepare the surface of the tipped area for seeding, and seed it with grass. Part of the tipped area consists of a void left by clay extraction activities and, as I have noted, part of the waste was material extracted from there. The claimant does not seek an order for that area to be prepared for seeding and be seeded.
It will be necessary to set out the somewhat complex factual and planning background to the present application, including the enforcement history of this site and the negotiations between OCC and the first defendant, its directors, and their advisers. The position is complicated because this is not the only breach of planning control by the first defendant in respect of this site. There is also a breach of planning control in respect of an irrigation lake and a haul road on the site. The defendants argue that to restore the land in accordance with the enforcement notices will not produce a good landscape solution because it will leave two bunds and a steep-sided and rather unnaturally shaped lake on the site. Moreover, they suggest that if they restore the land in accordance with the enforcement notices before they know what is to happen in respect of their other breach they are likely to incur additional expense. They also suggest that some of the waste will be required to shield residents from the lighting on a driving range. It does appear from reading the correspondence between the parties that Mr Alesbury was correct in stating at the hearing that there has been a serious breakdown of trust between the parties. Before turning to the evidence and the planning and enforcement history, I set out the legal principles governing applications under section 187B of the TCPA 1990.
The legal principles
The legal principles were settled by the House of Lords in South Bucks District Council v Porter [2003] 2 AC 558, UKHL 26. In that decision their Lordships endorsed the approach in that case of Simon Brown LJ, as he then was: [2001] EWCA Civ 1549, paragraphs 38–42. Simon Brown LJ stated that, while the jurisdiction under section 187B is an original and not a supervisory jurisdiction, it is clear that the judge on a section 187B application "is not required, nor even entitled to reach his own independent view of the planning merits of the case". In Davis v Tunbridge and Malling Borough Council [2004] EWCA Civ 194, in a judgment with which Arden and Jacob LJJ agreed, Auld LJ stated (at paragraph 34) that the effect of the speeches in South Bucks District Council v Porter was as follows:
"1) section 187B confers on the court an original and discretionary, not a supervisory, jurisdiction, so that a defendant seeking to resist injunctive relief is not restricted to judicial review grounds; 2) it is questionable whether Article 8 adds anything to the existing equitable duty of a court in the exercise of its discretion under section 187B; 3) the jurisdiction is to be exercised with due regard to the purpose for which [it] was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by a defendant of the relevant planning controls and procedures may weigh heavily in favour of injunctive relief; 4) however, it is inherent in the injunctive remedy that its grant depends on a court's judgment of all the circumstances of the case; 5) although a court would not examine matters of planning policy and judgment, since those lay within the exclusive purview of the responsible local planning authority, it will consider whether, and the extent to which, the local planning authority has taken account of the personal circumstances of the defendant and any hardship that injunctive relief might cause, and it is not obliged to grant relief simply because a planning authority considered it necessary or expedient to restrain a planning breach; 6) having had regard to all the circumstances of the case, the court will only grant an injunction where it is just and proportionate to do so, taking account, inter alia, of the rights of the person or persons against whom injunctive relief is sought, and of whether it is relief with which that person or persons can and reasonably ought to comply."
These cases concerned travellers who were occupying land in the areas of the respective local authorities without planning permission. In Porter's case the Court of Appeal considered four appeals from decisions by trial judges granting injunctions and allowed three of them essentially on the ground that the trial judges had taken too restricted a view of the discretion which they were called upon to exercise. In Davis's case, the decision of the trial judge granting the injunctions was affirmed. The main consideration against the grant of injunctions was the hardship that, on the evidence before the trial judge, eviction would cause the appellants because they had nowhere else to go. The judge had paid considerable attention to this (see Auld LJ at paragraph 64) but concluded that in the circumstances of the case the grant of the injunction was a just and proportionate step in the protection of the public interest in safeguarding the environment. The judge took the view, with which the Court of Appeal agreed, that the combination of the seriousness of the environmental damage caused by the planning violation in respect of what was a highly sensitive site and the appellants' deliberately unlawful conduct in commencing and persisting in it for some three years outweighed the hardship the appellants would suffer in having to leave the site. The jurisdiction was further considered in Coates v South Buckinghamshire District Council [2004] EWCA Civ 1378, another case involving travellers. It was not in issue that the Council was entitled to the injunction. The only issue before the court was whether the obligation to comply with the injunction should be stayed pending the determination of a planning application that the travellers proposed to make. A majority of the...
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