Runnymede Borough Council v Ball
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE FOX,LORD JUSTICE PURCHAS,SIR ROGER ORMROD |
| Judgment Date | 17 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0717-5 |
| Docket Number | 85/0448 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 1985 |
[1985] EWCA Civ J0717-5
Lord Justice Fox
Lord Justice Purchas
and
Sir Roger Ormrod
85/0448
No. 11/85
IN THE SUPREME COURT OF JUDICATURE
(COURT OF APPEAL)
(Civil Division)
(On appeal from His Honour Judge Blackett-Ord)
Royal Courts of Justice,
MR. M. BURRELL (instructed by Royds Barfield London EC4) appeared on behalf of the appellant.
MR. P. CONI Q.C. and Mr. H. Setright (instructed by Mr. L. Cash High Street, Egham, Surrey) appeared on behalf of the Respondents.
This is an appeal from a decision of Judge Blackett-Ord sitting as a judge of the Chancery Division, whereby he dismissed the application of the Runnymede Borough Council ('the Council') for an interlocutory injunction restraining the 1st–14th and the 18th and 19th defendants from using certain land for the siting of caravans for residential purposes in contravention of certain Stop Orders and Enforcement Notices.
The land in question, which is about 2.7 acres in extent, is at Clockhouse Lane, Egham, Surrey. It is within the Green Belt. The Council is the Local Planning Authority and it brings the proceedings under section 222 of the Local Government Act, 1972.
Mr. Ball, the 1st defendant, owns the freehold of the land. The other defendants are quitable co-owners having contributed to the purchase price in equal shares. Mr. Ball purchased the land in September, 1984 though the Council did not discover that until November, 1984. The equitable ownership of the other defendants did not emerge until the hearing before Vinelott, J. in December, 1984. It appears that the purchase was made for the purpose of using the land as a gypsy caravan site.
On 12th September, 1984 the land was being cleared by a bulldozer driver, a Mr. Stevens. The Council made a direction under Article 4 of the General Development Order 1977 which removed, in relation to the land, the general permission under the Order for the erection of gates and fences and access to the highway; a Notice of the Direction was affixed to the land. The 1st defendant, Mr. Ball, informed Mr. Springford, an official of the Council, that he was the owner of the land but gave a false name; the official informed the 1st defendant and Mr. Stevens of the effect of the Direction.
On the 21st September, 1984 four heaps of hoggin were on the land. That was in breach of planning control. Mr. Springford told the 1st Defendant and Mr. Stevens that spreading the hoggin would be a further breach. The Council then served an Enforcement Notice, by affixing it on the land. The 1st Defendant told him to get off the land and not come back. Mr. Springford later, on the 21st September served, by affixing it on the land, an Enforcement Notice effective on the 26th October requiring the storing of hoggin on the land to cease. The Notice also required the storage of a caravan on the land to cease.
The caravan was removed by the 27th September.
On the 4th October Mr. Stevens was shovelling ballast to make an access road on the land. Mr. Springford reminded Mr. Stevens of his previous warning and later that day served (by fixture on the land and service on Mr. Stevens personally) an Enforcement Notice effective on 5th November requiring the roadway to be removed.
On the 5th October Mr. Springford served a Stop Notice, effective on the 9th October prohibiting the construction of an access road on the land. The service was by fixture on the land and delivery at Mr. Steven's residence. The Notice stated that its contravention was a criminal offence.
On the 12th November the site of an access road was being levelled by a bulldozer and Mr. Stevens was working on the site with a shovel. These acts were offences in contravention of the Stop Notice of the 5th October. Mr. Stevens was subsequently served with a Summons in respect of these offences which was returnable on the 12th December.
On the 18th November the access road was being extended to encircle the centre of the land. Earth was being moved with a bulldozer. Ballast had been spread over a large area. This was an offence in contravention of the Stop Notice of the 5th October.
On the 19th November the construction of the access road was still continuing. That was an offence in contravention of the Stop Notice of the 5th October. There was also a residential caravan on the site. The 1st Defendant informed Mr. Springford that he was the sole owner of the land. He was reminded of the breaches of planning control. On this occasion he disclosed that his name was David Ball. On the 20th November copies of an Enforcement Notice of that date, and effective on the 21st December, 1984 requiring the use of the land for the siting of caravans for residential use to cease and any caravans to be removed from the land were served by fixture on the land and service on the 1st Defendant personally.
On the 22nd November, 1984 the Council wrote to Dr. Howe, who was advising the defendants on planning matters, that the Council intended to take legal action to prevent an unauthorised gypsy site being established on the land.
On the 27th November the Council found that one of the gateposts at the entrance to the land had been removed altogether with about 10 yards of the adjoining chainlink fence and also a tree which was subject to a tree preservation order. Hardcore had been laid in the resulting gap in order to produce a much wider access to Clockhouse Lane.
On the 28th November a Stop Notice of that date and effective on the 2nd December, 1984 prohibiting the use of the land by caravans for residential purposes was served by fixing to the land and delivery to the 1st Defendant personally. The Stop Notice stated that its contravention was a criminal offence.
On the 28th November an Enforcement Notice of the same date and effective on the 28th December which required the widened and altered access to the land from Clockhouse Lane to be reduced to its former width was served by fixture to the land and by delivery to the 1st Defendant personally. A Stop Notice of the same date and effective on the 2nd December prohibiting the widening and improvement of the access road was similarly served. The Stop Notice stated that its contravention was a criminal offence.
On the 27th November the Council wrote to the 1st Defendant a letter (served on him personally). This stated that the Council wished to make it absolutely clear that planning permissior did not exist for the user of the land as a caravan site and were most concerned at Mr. Ball's wilful disregard of the planning law. The letter further stated that if the user was proceeded with the Council would take whatever remedies were open to it, including an injunction, restraining the user. Mr. Ball was asked for confirmation that the unlawful development would stop. No reply was received.
On the 30th November, 1984 the access road was being constructed to encircle the whole of the land. This was an offence in contravention of the Stop Notice of the 5th October, 1984.
The Council's evidence is that the site has a capacity of approximately 50 caravans. Mr. Ball denies this and says that there are 14 sites taking 2 caravans per plot. To that the Council replies that the area of 2.7 acres and current site standards allow approximately 20 caravans per acre.
I return to the chronology. On the 3rd December a fence, 6 feet high, was erected around the eastern and western boundaries of the land. Some 10 men, according to the Council's evidence (which, as I understand, is not disputed) were working on the land including the 1st Defendant.
On the 5th December the land was being divided into small plots by means of wooden fences. This was in breach of planning control. Each plot was of normal size for a caravan.
On the 7th December Vinelott, J. accepted certain undertakings from the 1st Defendant (including an undertaking not to permit the co-owners or any other person to bring caravans or mobile homes on to the land): interlocutory injunctions were granted restraining the other Defendants (who do not appear) from establishing a caravan site on the land. It was temporary relief over the substantive hearing of the Council's application.
On the 7th December a letter was written by the Council to the 2nd–15th Defendants informing them of the interlocutory injunction granted by Vinelott, J. On the evening of the 7th December these letters were delivered personally to the 3rd, the 6th Defendants, the 11th, 13th, 14th and 15th Defendants and the wife of the 9th Defendant.
The Council's officers were unable to find the 8th and 9th Defendants so their letters were handed to the 15th Defendant who said he would pass them on. The 2nd, 10th and 12th Defendants had not been traced.
As regards penalties, section 89(5) of the Town and Country Planning Act, 1971 provides that where by virtue of an Enforcement Notice use of land is required to be discontinued or any conditions are required to be complied with in respect of a use of land, persons acting in contravention of the notice shall be guilty of an offence and shall on summary conviction be liable to a fine not exceeding £1,000 or on conviction on indictment to a fine and if the use is continued after the conviction to a fine not exceeding £100 per day of the user.
Section 90 (i) of the Town and Country Planning Act, 1971 provides that where an Enforcement Notice has been served requiring a breach of planning control to be remedied but the planning authority consider it expedient to prevent, before the expiry of the period allowed for compliance with the notice, the carrying out of...
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