South Cambridgeshire DC v Flynn
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Silber |
| Judgment Date | 07 June 2006 |
| Neutral Citation | [2006] EWHC 1320 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ05X02057 |
| Date | 07 June 2006 |
[2006] EWHC 1320 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISON
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Silber
Case No: HQ05X02057
Richard Langham (instructed by Head of Legal Services, Cambridge District Council) for the Claimant
Alan Masters (instructed by Bramwell Browne Odedra of Chesham, Bucks) for the Second to Seventh Defendants, the Eighteenth and Twenty Eighth Defendants.
The remaining defendants were neither represented nor present at the hearing
Hearing dates: 14 and 15 February 2006 and 15 May 2006
Numerous further written submissions from 16 February 2006 until 11 April 2006, 11 May 2006 and 12 May 2006
APPROVED JUDGMENT
I. Introduction
South Cambridgeshire District Council ("the claimants") seeks an injunction under section 187 B of the Town and Country Planning Act 1990 ("the Act") to require the defendants to remove caravans stationed on land known as Pine View, which forms part of Smithy Fen, Cottenham in Cambridgeshire ("the land") and which is denoted in the plan attached to this judgment as areas H, I and J. The claimants also seek further ancillary relief against some of the defendants.
Three enforcement notices have been served in respect of different parts of the land and they have all been upheld on appeal. Many of the defendants applied for planning permission to use the land as a caravan site. After an eight-day inquiry into these applications for planning permission, the Inspector on 10 January 2005 recommended first that the applications for planning permission be refused and second that the appeal against the third enforcement notice be dismissed.
On 11 March 2005, these recommendations were upheld on appeal by the First Secretary of State who also refused to extend the time for complying with the third enforcement notice. After the deadline for complying with each enforcement notice passed, the claimants resolved to seek the injunction, which is the subject-matter of the present application. The purpose of the present injunction is to seek compliance with the enforcement notices against the defendants, who have been described in their counsel's written skeleton argument as "a family group of ethnic 'Irish travellers'".
After the oral hearing was concluded, I received a substantial number of further written submissions and these were partly occasioned by some decisions which were given shortly after I reserved judgment. The handing down of this judgment was unfortunately delayed partly because of these written submissions but also because I was out of London on circuit for much of the remainder of last term. When I was about to circulate a draft of the judgment in early April 2006, I was informed that the Court of Appeal was about to deliver judgment in a case which might be determinative of one of the major issues on this application. I then delayed handing down this judgment. On 5 May 2006 the Court of Appeal gave judgment in that case ( South Bedfordshire District Council v Price [2006] EWCA Civ 493) and subsequently, I heard further oral submissions on its effect. I am grateful to counsel for their helpful submissions.
II. Chronology
In early 2003 an access track and a bund on area I and J marked on the attached plan were constructed with area H then being occupied by gypsy caravans.
On 19 March 2003, the first enforcement notice was served and it prohibited use of area H as a residential caravan site and the ancillary provision of drains, accesses and hard-standings. The first defendant appealed against this notice.
On 19 March 2003, a second enforcement notice was served relating to areas I and J and it required the removal of the earth bund and the track. A stop notice was also served. The thirty-fourth defendant appealed against the second enforcement notice.
In April 2003 caravans arrived on area I and plots 9 and 10 of it were occupied. On 28 August 2003, a third enforcement notice was served which related to area I and J and it prohibited its use as a caravan site and ancillary provision of drains, accesses and hard standings. The second defendant appealed against this enforcement notice. A stop notice was also served.
On 18 November 2003, the Inspector upheld the first and second enforcement notices. Applications were also made for planning permission to use areas H, I and J as caravan sites but these applications were refused by the Council and the applicants then appealed to the Secretary of State.
The deadline for compliance with the first and second enforcement notices was 18 February 2004 but they still have not been complied with. As I have already explained, the Inspector, who considered the third enforcement notice, conducted a hearing and made recommendations which were accepted by the First Secretary of State.
On 6 July 2005, in circumstances whish I will describe in paragraphs 31 to 33 below, the relevant committee of the claimants resolved to seek the injunction, which is the subject of the present application. The claim form was issued on 19 July 2005.
On 5 August 2005, Gray J granted an interim injunction. Subsequently on 18 November 2005, Cresswell J made a number of directions. The only defendants who have participated in the present proceedings are the second to seventh defendants, the eighteenth and the twenty-eighth defendants ("the represented defendants") all of whom have been represented by counsel.
There are two features which distinguish this case from the facts in many other cases concerning gypsies, of which the first is that these defendants own the land, which is the subject matter of the present application and so this distinguishes their claims from those in many of the reported cases in which gypsies have only had a short connection with the place from which the council is seeking to evict them. Second, the land in this case is not "green belt" land. I will bear those points in mind in considering all aspects of this application.
None of the other defendants have entered Acknowledgments of Service or made any representations or adduced any evidence and it appears that they have now left the land. If, as I will explain is the position, the claimants succeed against the represented defendants, they must also succeed against the unrepresented defendants. Thus the remainder of this judgment will focus on the claims against the represented` defendants
III. The Statutory Provisions
Section 187B of the Act reads as follows:
"(1) Where a local planning authority considers 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."
IV. The Issues
Mr. Alan Masters, counsel for the represented defendants, contends that it would not be appropriate to grant the injunctive relief sought at this stage essentially for two reasons of which the first is that in all the circumstances including the defendants' rights under article 8 of the European Convention on Human Rights ("the ECHR") it would not be proportionate or correct to allow the claimants' application ("the proportionality issue"). The second ground of challenge is that because of a recent circular C1/2006 ("the 2006 circular"), there are now such prospects of the defendants obtaining either from the claimants or on appeal at least a temporary consent that it would not be appropriate to grant the relief sought by the claimants ("the 2006 circular issue").
Mr. Richard Langham, counsel for the claimants, contends that these contentions on the proportionality issue are flawed principally because most of these matters were considered by the Inspector and rejected by him in his report and recommendations, which was then upheld by the First Secretary of State. He also submits that the terms of the 2006 circular will not enable the defendant to obtain either from the claimants or on appeal at least a temporary consent In any event, he contends that there is no merit in the submissions made on behalf of the represented defendants with the consequence that the claimants are entitled to the relief claimed.
There has been some disagreement about what the Inspector recommended and also what weight I should attach to the recommendations of the Inspector and decision of the First Secretary of State.
IV. The basis and relevance of Inspector's Report and Recommendations.
In his very detailed report, the Inspector explained that the refusal of planning permission for
reason was for reason of a conflict with policy restricting development of the countryside and a conflict with the policy for gypsy caravan sites. The reasons for those conflicts with policy were first because the...
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