R (Lee) v Nuneaton and Bedworth Borough Council
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 21 April 2004 |
| Neutral Citation | [2004] EWHC 950 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 21 April 2004 |
| Docket Number | CO/99/2004 |
[2004] EWHC 950 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand London WC2
Mr Justice Collins
CO/99/2004
MR HICKMET (instructed by David Wilshaw) appeared on behalf of the CLAIMANT
MR RUMNEY (instructed by Nuneaton & Bedworth Borough Council) appeared on behalf of the DEFENDANT
The claimants in this case are gypsies. In April 2001 they entered upon a site, Wolvey Road, Bulkington, and there set up a number of their caravans on various pitches. The site itself had been, I think, purchased by one of their number and the arrangement was that the various pitches on the site, which numbered some 30 or thereabouts, would be occupied by individual families or rather individual caravans. The site in question is in the Green Belt and no planning permission was obtained or indeed sought for the development in question.
Very shortly after the occupation of the site the local authority, the defendants, applied for an injunction under section 187B of the Town and Country Planning Act 1990. The application came before a circuit judge, HHJ McKenna, on 3rd May and he ordered that there should be no further development in breach of planning control, the occupation of the site should be ended by 14th June, and the site itself reinstated by 21st June.
Shortly thereafter 21 separate planning applications were lodged by the various plot holders. Those applications were refused by the defendant authority on 20th July 2001 and on 24th July enforcement notices were issued requiring the use of the site as a gypsy caravan site to cease within three months of the notice.
There was an appeal against the refusals of planning permission and the enforcement notice, and in March 2002 there was a public inquiry. Prior to that the orders which had been made by HHJ McKenna had been varied by an order of HHJ Rundell in January 2002 so they were not to include an order requiring the ending of residential caravan use of the site. The reason for that change was the decision of the Court of Appeal in South Buckinghamshire DC v Porter, and the recognition that the specific rights of gypsies had not properly been taken into account in the original decision which had been made by HHJ McKenna. He could not be criticised for that because as the law then stood he reached a decision which was justifiable but the Court of Appeal decision in Porter changed the position.
After the inquiry the inspector refused the permissions and upheld the enforcement notice but extended the time for compliance from three to nine months, that is to say by 27th March 2003.
The inspector was concerned with —because the matter was raised before him —the difficulties of gypsies in finding sites to place their caravans because there were no such sites in the local authority area, and the policy which was reflected in the proposed plan, which was at that stage under consideration, was not site-specific. Indeed one of the problems in this case has been the inability of the local authority to identify sites which are either available or satisfactory to enable the claimants to find somewhere to place their caravans.
This is partly due to the well-known national problem that Parliament, having repealed the Caravan Sites Act 1961, has not required local authorities to provide sites for gypsy encampments and it is well known that there tends to be local opposition to the provision of such sites. So there are real difficulties in finding places where they can be put, and if they are put in the countryside away from other habitations or in Green Belt land, there are obvious breaches of planning policies. Again there tend to be, whether or not they are justified, complaints about untidiness and so on which lead to further difficulties. I make it clear that I am not aware of any suggestions of that sort in connection with the site with which I am concerned in this case. It is merely that it is a site which does not have planning permission, is in the Green Belt, and a decision has been made that planning permission should not be granted. That is the position that unfortunately has to be faced by the claimants.
The decision of the inspector was taken to appeal and came before Forbes J in December 2002. He decided that the appeal should be dismissed, and again before him the issues were raised which are regularly raised in cases involving gypsies of the real problems that are faced in finding sites and the importance, which I understand and with which I entirely sympathise, of ensuring that their way of life is properly respected and if possible is catered for in the various areas of the country where they would wish to settle and regard as their permanent base.
I put it that way because, being travellers, obviously they travel and they spend time away from a particular area but they do in most cases and certainly as I understand it in this case, regard this site as their home base as it were, and the place to which they return regularly during the year whether or not they choose to travel, perhaps to work, perhaps for other purposes at other times, and no doubt their children attend local schools at or near this particular site. So, as I said, it is the site which they regard as their home site.
The enforcement notice had to be complied with by 27th March 2003; it was not. On 1st April the local authority resolved to apply to the court for an injunction. I have been referred to the report to the committee and to the resolutions made by the committee which deal with the various decisions which are relevant in this case.
The report to the committee in April set out the history as I have indicated and referred to the various alternative courses of action that could be taken. There, in reference to the possibility of prosecution which would carry a fine but could not result in an order that the offender leave the site, the provisions of section 178 of the Town and Country Planning Act 1990 were referred to and that enabled the local planning authority to enter the land and take steps required by an enforcement notice. In this case that would have involved the removal of the caravans and other items from the land, and the expense of doing so and reinstating the land to its original condition could under the Act be recovered from the claimants.
But it was pointed out that there were disadvantages. The removal of the caravans was likely to lead to them being placed illegally throughout the surrounding area. Bailiffs would have to be instructed and there would be protests and difficulties and police involvement and, no doubt, widespread media interest. There was then the possibility of the renewal of an application for an injunction under section 187B. HHJ Rundell had indicated in January 2002 that the matter might well be expected to be referred back to him when the results of the planning appeals were known. That was the suggested route that should be used by the Council following the advice of counsel.
The committee was referred to the judgment of the Court of Appeal in South Buckinghamshire DC v Porter and to the observations of Simon Brown LJ in these terms:
"The judge on a section 187B application is not required, or 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."
There was then reference to the possibility of alternative sites, views of local residents which were hostile, and there followed a recommendation that an application for injunctive relief should be pursued. That is indeed what was decided.
The matter came before HHJ Rundell on 31st July 2003. The arguments were deployed before him by Mr Hickmet, no doubt very persuasively as he has made his submissions before me, but they failed. The learned judge decided that notwithstanding the real problems which were faced by the claimants, injunctive relief should be granted. But he had to consider the question as to when that relief should bite. He decided that it was just and proportionate to make the order. He did consider what had been done by the claimants. It was noted by him that only one of the 70 or so respondents before him had sought to put in any evidence and to refer to any powerful personal circumstances which pointed towards that particular respondent being permitted to remain on the site. The absence of any such evidence led the learned judge to conclude that there were no such particular powerful circumstances.
He then went on in...
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