Surrey Heath Borough Council v Rooney & Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY |
| Judgment Date | 18 April 2005 |
| Neutral Citation | [2005] EWHC 1922 (QB) |
| Docket Number | HQ02XO1447 (05/ATC/0321) |
| Court | Queen's Bench Division |
| Date | 18 April 2005 |
[2005] EWHC 1922 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Ouseley
HQ02XO1447 (05/ATC/0321)
MR M. BEARD (instructed by Council of Camberley) appeared on behalf of the Claimant
MR D. WATKINSON (instructed by South West Law, Bristol) appeared on behalf of the Defendant
On 5 November 2004, following a two-day trial, Mr Justice McCombe granted an injunction to Surrey Heath Borough Council against six defendants in respect of a field, OS8594, which is situated off the Chertsey Road, Chobham, Surrey. He granted an injunction pursuant to Section 187B of the Town and Country Planning Act 1990, which, put simply, required the defendants to stop using the field for the purposes of residential caravan or mobile home use.
In more detail, it required the caravans and mobile homes, portable structures, motor vehicles and parts to stop being used, and to be removed. That part of the order was suspended for three months.
There were other provisions in the order, which were suspended for five months until 5 April 2005, which were, in effect, the obligations to restore the land, post-cessation of use and post-removal of vehicles and structures.
The order made by Mr Justice McCombe had attached to it the relevant notes that it would be a contempt of court not to comply and that there was a risk of imprisonment if the order was not complied with.
There is no dispute about the evidence of the claimant's two planning enforcement officers, Mr Lynn and Mr Lewis, that no requirement of the order has been complied with. The caravans, mobile homes, vehicles and structures remain on site.
There is no procedural dispute but that the order, penal notices and service of the application for committal, which I am now dealing with, were all properly dealt with.
Accordingly, there is an undisputed contempt of court.
Mr Watkinson, who appears on behalf of the first two, fourth and the sixth defendants, does not dispute that there has been a contempt of court but seeks, in effect, that the court should not enforce its order by imprisonment or, being realistic, by any other effective means. He had contemplated putting in an application for a variation of the order but, recognising that that would raise the same issues as these committal proceedings raise, he has not sought to pursue it.
So far as the fifth defendant is concerned, he is neither present nor represented. He is estranged from the fourth defendant and is not on site. No relief by way of committal is sought against him.
It would be appropriate now to sketch in some of the background to this matter. The defendants are a family of gypsies as they see themselves. The second and third defendants, aged 67 and 71, are the mother and father of the first and fourth defendants, who are their daughters. The first defendant is married to the sixth defendant. Although the sixth defendant lives on site, he does not live with the first defendant as her husband. Their relationship has, to some extent, broken down. They have two children, aged nearly five and nearly eight.
The second and fifth defendants are married but the fifth defendant, as I have said, is estranged and not on site. They have two children, one aged three and the other six months.
The defendants arrived on site in around early 2002. They had no planning permission for putting the caravans and mobile homes on site. Proceedings were envisaged against them because of the breach of planning control. Indeed, the proceedings in which the committal application is made were commenced on 7 May 2002.
In July 2002, the first defendant gave what has been described as an undertaking, not an undertaking enforceable by committal but effectively a promise, to Mr Justice Sullivan that a planning application would be lodged and that, if the application were unsuccessful, the residential user of the site would cease and the caravans and mobile homes would be removed.
A planning application was made. It was refused because the site lay within the green belt, it would constitute inappropriate development and the personal circumstances of the family were not sufficient to outweigh the policy objections. There was also a highway danger objection.
The first defendant appealed to the Secretary of State against that refusal. Following an inquiry, the inspector dismissed that appeal in a decision of 9 February 2004. There was no appeal from that decision.
The inspector's reasoning is set out at some length in the judgment of Mr Justice McCombe when he made the order that has given rise to these proceedings. The inspector concluded that, having regard to the statutory definition of gypsy within Section 24(8) of the Caravan Sites and Control of Development Act 1960, only the fourth and fifth defendants came within that definition. The sixth defendant did not fall for consideration because he was not present. It was accepted that the extended family had had a nomadic lifestyle but the family had, in a variety of ways, settled down. The elderly parents had ceased their nomadic habit of life. The first defendant had likewise ceased that life although her husband, from whom she was estranged, still had a nomadic way of life.
The inspector made a number of comments to the effect that there was both a national need for more gypsy sites and a need for more gypsy sites in Surrey. Sites to meet that might need to be found in the green belt. He allowed that as a factor weighing in the defendants' favour in the planning appeal. He considered that there had been a lack of real effort by the defendants to find potentially suitable alternative sites although he recognised the difficulties that they would face.
He then turned to the harm that was created by the development and concluded that the harm was such that it outweighed the personal circumstances that were prayed in aid as very special circumstances enabling inappropriate development to take place. Amongst those personal considerations were the health circumstances of the elderly parents and the educational circumstances of the two children, in particular, of the first defendant.
Having taken those matters into account and recognising that a realistic consequence of the dismissal of the appeal would be a resumption of an itinerant lifestyle and roadside stopping, the inspector nonetheless considered that the planning appeal should be dismissed. He gave specific consideration to the position under the Human Rights Act and the ECHR. He was also aware of the children of the fourth and fifth defendants.
Following the dismissal of the appeal and the continuation of the use, the local authority sought an injunction to prevent the continuation of the breach of planning control.
Mr Justice McCombe sets out in his judgment the circumstances that he found, including the position in terms of the availability of sites, and the guidance in the House of Lords decision in South Bucks District Council v Porter & Ors [2003] UKHL 26 [2003] 2 AC 558 as to how such injunctions should be approached. He came to the view that, in all the circumstances, an injunction, suspended as I have described, should be granted.
It is not necessary for me to repeat all that he said by way of his reasoning. But it is to be noted that he took the view that the evidence of detriment was all one way, that the defendants had manifested a clear intention to continue that detriment in defiance of planning control, and concluded that an injunction was necessary to terminate the relevant detriment.
He then considered the relationship of the family to the area in the way described by the inspector. He recognised that, although the younger male members of the family might wish to continue travelling, the family as a whole wanted to base itself on an effectively permanent basis at the site. He, therefore, recognised that the defendants' case was that the personal circumstances prevailing in their case had, for the foreseeable future, to be permitted to outweigh the indisputably legitimate claims of the aims of the council in the public interest in enforcing planning control.
He then referred to the planning history, and considered the hardship to the defendants in being required to vacate. He said in paragraph 53 that the hardship centred around the older and younger generations of the family. He would not identify any individual hardship to Mr Loveridge or Miss Rooney, that is to say the first and sixth, or to the fourth and fifth defendants if an injunction were granted. It was recognised by him that the elderly parents had a number of medical symptoms suffered, unfortunately, by many elderly people and that there was a particular operation on his knee that Mr Rooney was expecting in April 2005.
He then turned to the special needs of the two children of the first defendant. There is no doubt that he recognised that there were particular circumstances there.
He concluded that the council had given due consideration to the relevant factors at each stage but reminded himself that he had to exercise his own discretion. There was no evidence of immediately available identified alternative sites although he was critical of how much effort had, in fact, been made to find such a site. He concluded, in paragraph 58, that none of the personal circumstances pointed away from the factors that Lord Bingham in South Bucks DC v Porter had put as pointing strongly towards the grant of the injunction:
"What the court is being asked to sanction is an...
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