Waverley Borough Council v Anthony Martin Gray
| Jurisdiction | England & Wales |
| Judge | Karen Ridge |
| Judgment Date | 25 August 2023 |
| Neutral Citation | [2023] EWHC 2161 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-002721 |
[2023] EWHC 2161 (KB)
Karen Ridge SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: QB-2021-002721
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand,
London,
WC2A 2LL
Wayne Beglan (instructed by Waverley Borough Council) for the Claimant
Stephen Cottle (instructed by Public Interest Law Centre) for the Second, Fifth, Sixth and Fourteenth Defendants
Felicity Thomas (instructed by Community Law Partnership) for the Seventh Defendant
Michael Fry (instructed by Brilliance Solicitors) for the Thirteenth Defendant
Hearing dates: 27, 28 and 29 June 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 12PM on 25th August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archive.
Deputy High Court Judge Karen Ridge
Introduction
This is the hearing of an application for a final injunction by the claimant, Waverley Borough Council, against 13 named defendants and persons unknown. The application is brought under s.187B of the Town and Country Planning Act 1990, in relation to land at Lydia Park, Waverley.
The Claimant's evidence is contained within a series of witness statements of its officers, William Gibb, John Bennett and Victoria Choularton. Mr Bennett gave further oral evidence to the court. When discussing the chronology of the proceedings I shall refer to the defendants by the number they have been given in these proceedings. No disrespect is intended.
Background
Cranleigh is a small settlement in the administrative district of the claimant, with Dunsfold Road, a minor road, running through the north of the settlement. The land which is the subject of these proceedings comprises land off Dunsfold Road at Lydia Park, Waverley (“the Land”) which is outside any settlement boundary and is in the open countryside. It is subject to a local plan policy designation as an Area of Great Landscape Value.
In the Council's documentation the Land has been sub-divided into five areas or sites (areas 1 to 5) which reflects the basis on which the land is owned or occupied by the named defendants.
Site 1: (subdivided into three sections)—occupied by D3 and D4 (middle section), D5 and D6 (top section) and D7 and D8 and family (bottom section).
Site 2: not occupied but subject of a prospective planning application and appeal following refusal. The appeal was dismissed following a hearing.
Site 3: is occupied by D13 and his family.
Site 4: contains two caravans which appear to be unoccupied. There is further unauthorised operational development in the form on hardstanding on this site.
Site 5: occupied by D14 and his family.
Following complaints in May 2021 that works had been undertaken to facilitate a change of use for the stationing of caravans, the local authority began its investigations. Land Registry records confirmed that D1 and D2 were the registered owners of the Land, and a temporary stop notice was served requiring cessation of works. This was followed by a series of temporary injunctions prohibiting further unauthorised works.
Terms of Final Injunction Sought
The terms of the injunction are set out in the draft order. The first clause is prohibitory in nature, preventing any unauthorised development or occupation of the land. Clauses 2 and 3 set out deadlines by which the defendants shall have vacated the Land. There are separate provisions in relation to D13 and D14 given that their circumstances are different. The remaining clauses are mandatory as well and provide for reinstatement of the Land to its former condition.
Procedural History
The claim was issued under Part 8 CPR on 14 July 2021 against named defendants D1–D11 and against persons unknown (D12). At a without notice hearing, the claimant was granted an interim injunction on that date, against the 11 named defendants and persons unknown. The interim injunction was extended further, on notice, at a hearing on 21 July 2021. It was again extended at a hearing on the 14 September 2021, save that ‘persons unknown’ were removed as defendants.
At a hearing on 11 November 2022, before HHJ Pearce sitting as a judge of the High Court the thirteenth and fourteenth defendants (D13 and D14), were added as named defendants by consent. They each gave personal undertakings to the Court, but no order was made prohibiting them from continuing to reside on the Land. At the hearing the interim injunction was also extended against D1-D12 and was further made against ‘persons unknown’ (D12).
All interim injunctions addressed the same essential actual, or apprehended breaches of planning control, namely the change of use of the land to that for the stationing of caravans for human occupation.
On 9 December 2022, D13 made an application to vary the Order in relation to the directions for trial and D7 made a further application to suspend the effect of the injunction to permit his family continued occupation of the Land. On 22nd December 2022 D3, D4, D5 and D 14 also made an application to vary the injunction. The application to suspend/vary by D7 was refused. The remaining applications were adjourned to this trial by the order of Deputy High Court Judge Healey-Pratt dated 21 March 2023 and the injunction continued.
On 15 February 2023, D5, D6 and D14 made an application for relief from sanctions and for permission to rely upon expert evidence at trial. By order of Wall J. dated 21 February 2023, relief from sanctions was refused and permission for expert evidence was refused. Mr Cottle confirms that an appeal has been made against this Order and is pending. I shall return to this matter if necessary.
A separate application dated 9 March 2023, for committal proceedings against some of the original defendants has been issued but it is not pursued at this time.
At the final hearing, Mr Beglan represented the claimant, Mr Cottle represented D3, D5, D6 and D14, Ms Thomas represented D7, and Mr Fry represented D13. The remaining defendants did not attend the hearing and nor were they represented. The named defendants who did not attend the hearing have been served with the Claim Form and effective steps have been taken to ensure that they were aware of the hearing. I was satisfied that it was in the interests of justice to proceed on the 27 June 2023.
Planning History of the Land
The claimant is the local planning authority for the administrative district containing the Land. The lawful use of the land is as an undeveloped green field for agricultural purposes. It is in the open countryside in an Area of Great Landscape Character where, recently adopted Local Plan policy RE1 seeks to protect the intrinsic character and beauty of the countryside.
Within the immediate area there is an established Gypsy and Traveller community. The western side of Stovolds Hill has established Gypsy and Traveller sites containing approximately 100 pitches in an area known as ‘Lydia Park’. Four planning applications have been granted for Gypsy and Traveller sites since 2016 on the Land to the North of Lydia with a total of 20 additional pitches. Two of the applications were granted on appeal.
The claimant has consistently refused planning permission for Gypsy and Traveller provision on the Land. The established Lydia Park sites are all located on one side of a track road and the injuncted land is on the other side, in an area of otherwise uninterrupted agricultural land.
The reasons for refusing permission for these defendants include that further Gypsy and Traveller provision in this area would cause dominance of Gypsy and Traveller occupation in terms of the Stovolds Hill settlement. The reasons also state that this unauthorised development is contrary to development plan and national policy in Planning Policy Traveller Sites, because the site is in open countryside; it is not allocated in the development plan, and it is away from the Cranleigh settlement.
The claimant published its Gypsy and Traveller Accommodation Assessment (GTAA) in 2018. That document assessed the need for additional sites. The claimant says that the identified need between 2017 and 2020 was met by the grant of planning permissions and that the need has been fully met. The appeal decision (APP/R3650/W/22/3297332) of Inspector Gilbert dated 31 August 2022 records that there is no shortfall in deliverable sites for Gypsies and Travellers in the borough. However, the Inspector clearly went on to conclude that there is a lack of alternative available sites given that the permissions were granted on Lydia Park where the presence of other families means that any available pitches are likely to be taken up by existing families intensifying the use or extending the families.
The witness statements of three Council officers set out the chronology of events in relation to the site since the first complaint of unauthorised development. The statements detail the site visits undertaken by various officers, interactions with site occupants and service of statutory notices.
Initial complaints about a substantial area of new hardstanding were received on 26 May 2021. A few days later five caravans were placed on the Land. The Council served a temporary stop notice and emergency tree preservation order on 4 June 2021. At that point there was an area of hardstanding on the Land, on which five caravans and two box trailers had been placed. An aerial image of the hardstanding was produced by Mr Gibb dated 9 June 2021 depicting a large area of hardstanding...
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