South Cambridgeshire District Council v Gammell; Bromley London Borough Council v Maughan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RIX,LORD JUSTICE MOORE-BICK,SIR ANTHONY CLARKE |
| Judgment Date | 31 October 2005 |
| Neutral Citation | [2005] EWCA Civ 1429 |
| Docket Number | B2/2005/1575(A); B2/2005/1575 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 October 2005 |
[2005] EWCA Civ 1429
the Master of the Rolls
(Sir Anthony Clarke)
Lord Justice Rix
Lord Justice Moore-Bick
B2/2005/1575(A); B2/2005/1575
B2/2005/1224; B2/2005/1086
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CAMBRIDGE COUNTY COURT and BROMLEY COUNTY COURT
(HIS HONOUR JUDGE PLUMSTEAD, HER HONOUR JUDGE HAMILTON QC)
Royal Courts of Justice
Strand
London, WC2A 2LL
MR MICHAEL PAGET (instructed by Community Law Partnership, Birmingham) appeared on behalf of the Appellants
MR DAVID ELVIN QC AND MR RICHARD LANGHAM (instructed by Mills & Reeve) appeared on behalf of South Cambridgeshire District Council
MR PARKER DARBY (instructed by Bromley Council) appeared on behalf of The London Borough of Bromley
( Approved by the Court)
Introduction
Section 187B of the Town and Country Planning Act 1990 ("the 1990 Act") provides:
"(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 on 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.
(3) Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.
(4) In this section 'the court' means the High Court or the county court."
Given the express terms of section 187B(3) and the rules made under this section, it is not in dispute that in appropriate circumstances the section gives the court power to grant an injunction against a person who is unknown. These appeals arise out of injunctions granted against individuals whose identities were unknown when the injunctions were granted. They are two linked appeals. Each is an appeal from an order by which the appellant was held to be in breach of the injunction and to be in contempt of court.
The first appeal ("the Maughan appeal") arises out of two orders of Her Honour Judge Hamilton QC in the Bromley County Court, dated 11 March 2005, in which she ordered, among other things that: (1) the London Borough of Bromley ("the LBB") have leave to add Winnie Maughan ("WM") and a number of other persons to committal proceedings pursuant to CPR 19.4; (2) Winnie Maughan be committed for contempt of court to serve a term of one month's imprisonment unless she removed all caravans she owned or occupied from any part of a farm called Waldens Farm.
The second appeal ("the Gammell appeal") is from the committal order of Her Honour Judge Plumstead in the Cambridge County Court, dated 11 July 2005, which ordered, among other things, that: (a) Kathleen Gammell ("KG") was bound by an injunction granted by the Court of Appeal to the South Cambridge District Council ("SCDC") on 17 September 2004; (b) KG was in breach of the injunction; (c) KG be joined as a respondent to the committal proceedings; and (d) that sentencing be adjourned to the week beginning 7 November 2005.
Both appellants are represented by the same counsel, Mr Michael Paget. The Maughan appeal is brought pursuant to permission being given by Tuckey LJ, who stayed the operation of the committal order, and the Gammell appeal is brought with the permission of the judge.
The issue in both appeals is essentially the same. It is whether and in what circumstances the approach laid down by the House of Lords in South Bucks District Council v Porter [2003] UKHL 26, [2003] 2 AC 557, applies to cases like these where an injunction is granted, not against named individuals occupying caravans on land without relevant planning consent, but against unnamed individuals who were not in such occupation when the injunctions were granted. In each case the judge declined to apply the principles in the South Bucks case to the case before her and in each case she held that there was a crucial distinction between the two classes of case. The question in both appeals is whether the judge was right to do so.
South Bucks District Council v Porter
The House of Lords considered three appeals involving different parties. In each case local planning authorities applied successfully to the court under section 187B of the 1990 Act for injunctive relief against the defendants, who are gypsies, to prevent them from living in mobile homes and caravans on land acquired by them for that purpose, but for which planning consent had been refused. The defendants appealed on the ground that, in granting the injunctions, the court had failed to consider, in addition to any relevant planning considerations, the likely effect of the orders on their human rights in accordance with section 6(1) of the Human Rights Act 1998 and the Convention scheduled to that Act.
The Court of Appeal allowed their appeals and the planning authorities appealed to the House of Lords. All the appeals were dismissed. The House of Lords held that section 187B of the 1990 Act conferred on the court an original and discretionary, not a supervisory, jurisdiction, to be exercised with due regard to the purpose for which it was conferred, to restrain actual or threatened breaches of planning control; that it was inherent in the injunctive remedy that its grant depended on the court's judgment of all the circumstances of the case; that, although the court would not examine matters of planning policy and judgment which lay within the exclusive purview of the authorities responsible for administering the planning regime, the court was not obliged to grant relief because a planning authority considered it necessary or expedient to restrain a planning breach; that the court would have regard to all, including the personal, circumstances of the case, and, since section 6 of the 1998 Act required the court to act compatibly with a Convention right (as so defined), and having regard to the right guaranteed in article 8, the court would only grant an injunction where it was just and proportionate to do so; and that, accordingly, the planning authorities' applications should be determined on that basis.
Article 8.1 of the Convention is entitled "Right to respect for private and family life" and provides:
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Article 8.2 contains the familiar exception.
It is important to note that, in each of the cases before the House of Lords, when the injunction was granted the respondent was in occupation of mobile homes or caravans in breach of planning law. As I read the speeches of the appellate committee, they endorsed the approach of Simon Brown LJ in the Court of Appeal. In paragraph 20, Lord Bingham set out paragraphs 38 to 42 of Simon Brown LJ's judgment and approved them. I refer only to what Simon Brown LJ said in paragraphs 41 and 42 of his judgment, which included the following:
"41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gypsies may have, still less that the court is bound to grant injunctive (least was all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate'—in today's language, proportionate. … Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought—here the safeguarding of the environment—but also that it does not impose an excessive burden on the individual whose private interests—here the gipsy's private life and home and the retention of his ethnic identity—are at stake.
42. I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."
In each of the appeals the matter was remitted to the judge to carry out that balancing exercise.
In Davis v Tonbridge & Malling Borough Council [2004] EWCA Civ 194 Auld LJ, with whom Arden and Jacob LJJ agreed, summarised the effect of the South Bucks case in paragraph 34 as follows:
"The effect of the various speeches—set out most comprehensively in the leading speech of Lord Bingham of Cornhill, was as follows: 1) section 187B confers on the courts 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 was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by...
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