South Bucks District Council v Porter and another; Chichester District Council v Searle and Others; Wrexham County Borough Council v Berry and another; Hertsmere Borough Council v Harty and another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE PETER GIBSON,LORD JUSTICE TUCKEY |
| Judgment Date | 12 October 2001 |
| Neutral Citation | [2001] EWCA Civ 1549 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 October 2001 |
| Docket Number | A2/01/9013 B2/2000/2742 A2/2001/0751 A2/2001/0731 |
[2001] EWCA Civ 1549
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM THE QUEEN'S BENCH
Mr Justice Burton
(2) ON APPEAL FROM CHICHESTER COUNTY COURT
H.H. Judge Barratt QC
ON APPEAL FROM THE QUEEN'S BENCH
(3) Mr Justice McCombe
(4) H.H. Judge Brunning (sitting as a High Court Judge)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Simon Brown
Lord Justice Peter Gibson and
Lord Justice Tuckey
A2/01/9013
A2/2001/9013
B2/2000/2742
A2/2001/0751
A2/2001/0731
(1) Mr Timothy Straker QC & Mr Ian Albutt (instructed by Sharpe Pritchard of London WC1V 6HG) for the Respondent
Mr Charles George QC & Mr Stephen Cottle (instructed by Mr Christopher Johnson of the Community Law Partnership of Birmingham B4 6RP) for the Appellant
(2) Mr Timothy Straker QC & Mr Robin Green (instructed by Sharpe Pritchard of London WC1V 6HG) for the Respondent
Mr David Watkinson (instructed by Mr Christopher Johnson of the Community Law Partnership of Birmingham B4 6RP) for the Appellants
(3) Mr Timothy Straker QC & Mr Robin Green (instructed by Sharpe Pritchard of London WC1V 6HG) for the Respondent
Mr Richard Drabble QC & Mr Stephen Cottle (instructed by Mr Christopher Johnson of the Community Law Partnership of Birmingham B4 6RP) for the Appellant
(4) Mr Robert McCracken & Mr Gregory Jones (instructed by Beryl Foster, Head of Legal Services, Hertsmere BC) for the Respondent
Mr Richard Drabble QC & Mr Murray Hunt (instructed by Lance Kent & Co. of Chesham HP5 1EG) for the Appellant
These four appeals raise difficult questions of some general application as to how a court should approach the exercise of its power under s.187B of the Town and Country Planning Act 1990, the power on application by a local planning authority to grant an injunction to restrain a breach of planning control. S.187B provides by subsections (1) and (2):
"(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."
The appellants in each case are gipsies, living in mobile homes on land which they occupy in breach of planning control. In all four cases the court granted injunctive relief requiring them (whether immediately or otherwise) to move off site. At the heart of these appeals lies article 8 of the ECHR. It is not disputed that such removals constitute an interference with the gipsies' right to respect for their private life, family life and home within the meaning of article 8(1). But nor is it in dispute that the interference is "in accordance with the law" and is pursued "for the protection of the rights … of others" within the meaning of article 8(2), namely through the preservation of the environment.
The question ultimately arising in these cases is, therefore, whether the interference is "necessary in a democratic society", i.e. whether it answers to a "pressing social need" and in particular is proportionate to the legitimate aim pursued. That, however, as all parties agree, is not in these cases a question for us: rather the question for us is whether the judges below correctly directed themselves. If they did, the appeals fail. If they did not, then, whether or not injunctions should properly be granted will have to be decided afresh at first instance on up-to-date facts.
The central issue for determination on the appeals is the extent to which the court itself on a s.187B application should exercise an independent judgment in deciding whether or not to grant an injunction. Five different counsel addressed us on the point. Their contentions as to the correct approach spanned a very wide spectrum. At one extreme Mr Watkinson submits that the court is bound to consider afresh all facts and matters including, indeed, all issues of policy as to whether planning permission should be granted and all questions of hardship were the gipsy to be removed. At the opposite end of the spectrum Mr Straker QC for three of the respondent authorities contends that, providing only that the planning authority has considered and struck the balance between the interests of the gipsy and those of the wider community and not reached a manifestly erroneous conclusion, an injunction should be granted unless there has been a material change in circumstances since the application was made. That, however, is not the approach contended for by Mr McCracken on behalf of the other respondent authority; such an approach, indeed, he himself describes as "uncompromising". But nor is Mr Watkinson's approach that contended for by Mr George QC and Mr Drabble QC on behalf of the other appellants; rather they accept that some deference must be paid to the planning judgments arrived at by the local planning authorities although, they submit, very considerably less deference than has hitherto been thought appropriate. Two of the judgments under appeal were given before the Human Rights Act 1998 came into force on 2 October 2000, two after that date. It is not now contended by the respondent authorities, however, that anything (save perhaps as to costs) should turn on that distinction. The question, therefore, arises in all four cases as to whether the hitherto established approach to s.187B is compliant with the 1998 Act. Mr Straker submits that it is. The appellants submit the contrary; indeed, they submit that even before the 1998 Act came into play the courts were taking too narrow a view of their discretion to withhold relief under the section.
Against that background it will readily be seen that the detailed facts of these cases are of secondary importance only on the appeals. True, "[i]n law context is everything," as Lord Steyn said in Daly v Home Secretary [2001] 2 WLR 1622, 1636. Whereas, however, the substantive decision whether to grant injunctive relief against these individual appellants will certainly depend upon their particular facts, the question whether the judges below directed themselves correctly upon the approach to the exercise of their discretion does not. The following very brief summary of the circumstance of each case will, therefore, suffice.
Porter v South Bucks District Council
Mr and Mrs Porter live in a caravan on a site known as Willow Tree Farm lying within the Green Belt at Iver in Buckinghamshire. The site was purchased by Mrs Porter in 1985 and since then has been occupied and used in breach of planning control. Mr Porter uses the land for horse dealing and breeding. Enforcement notices were first served in 1987. Planning permission for a detached dwellinghouse was refused in 1988. In November 1988 the appellant pleaded guilty to non-compliance with the enforcement notices and was fined £600. In 1992 planning permission for retention of a mobile home was refused and an appeal to the Secretary of State withdrawn. In 1993 planning permission for change of use from agricultural to mixed use including use as a private gipsy caravan site for 5 mobile homes was refused and again an appeal to the Secretary of State was withdrawn. Further enforcement notices were served in September 1993 requiring the destruction of various outbuildings and in July 1994 the appeal against these was dismissed although the inspector allowed 12 months for compliance. A fourth application for residential use of the site including retention of the mobile home and buildings was refused in November 1997 and in October 1998 the appeal against that refusal was dismissed by the inspector. A yet further application for planning permission was refused and the appeal against that refusal was due to be heard in September this year. The appellants' principal arguments for remaining on the land include the impossibility of finding suitable alternative accommodation, the suitability (as they contend) of horse-breeding for countryside use, and Mrs Porter's health problems: chronic asthma, severe generalised osteoarthritis and chronic urinary tract infection.
On 27 January 2000 Burton J granted the respondent Council injunctive relief requiring the appellants within one year to cease using the land for stationing caravans and storage and business purposes, to demolish the relevant outbuildings, and to remove the hardstanding.
Searle v Chichester District Council
This is the only one of the four appeal sites not in the Green Belt. It is, however, in an area of countryside where development is closely controlled. In May 2000 the appellants purchased the plot for £14,000 from a Mrs Collins, her prior application for outline planning permission for a detached bungalow and garage having been refused and her appeal against that refusal dismissed by the inspector in June 1999. Shortly after acquiring the land the appellants were advised by two of the respondent's enforcement officers that planning permission was needed to move a mobile home onto the land. The appellants agreed not to do this without permission and later repeated their assurance. These assurances notwithstanding, the appellants in mid-June 2000 brought two double unit mobile homes onto the...
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