South Buckinghamshire DC v Porter (No 1)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD CLYDE,LORD STEYN,LORD SCOTT OF FOSCOTE,LORD BINGHAM OF CORNHILL,LORD HUTTON
Judgment Date22 May 2003
Neutral Citation[2003] UKHL 26

[2003] UKHL 26

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Steyn

Lord Clyde

Lord Hutton

Lord Scott of Foscote

Wrexham County Borough Council
(Appellants)
and
Berry
(Respondent)
South Bucks District Council
(Appellants)
and
Porter

and another (FC)

(Respondents)
Chichester District Council
(Appellants)
and
Searle

and others

(Respondents) (Consolidated Appeals)
LORD BINGHAM OF CORNHILL

My Lords,

1

On 12 October 2001 the Court of Appeal (Simon Brown, Peter Gibson and Tuckey LJJ) allowed three appeals and dismissed one: [2002] 1 WLR 1359; [2001] EWCA Civ 1549. The dismissal of the fourth of these appeals ( Hertsmere Borough Council v Harty) has not been challenged and that case need not be mentioned further. The appellants before the Court of Appeal in each of the three cases now before the House were Gypsies complaining of injunctions granted against them at first instance on the application of local planning authorities under section 187B of the Town and Country Planning Act 1990. For reasons given by Simon Brown LJ in a judgment with which the other members of the court agreed (paragraphs 60, 61) the Gypsies' appeals were allowed and the cases were remitted to the respective trial courts for redetermination. By leave of the House the three local authorities now appeal to it, challenging the guidance given by the Court of Appeal on the grant of injunctions under section 187B. The correctness of that guidance is the central issue in these appeals.

2

Although the Court of Appeal described the facts of these particular cases as of secondary importance only (paragraph 5), because the issue raised is one of principle, it is nonetheless relevant to record the facts in brief summary and to note factual developments in the period of 18 months since the Court of Appeal gave judgment.

Mr Berry

3

Mr Berry bought land near Wrexham, within the Green Barrier, the Welsh equivalent of the Green Belt, in August 1994. The land is within the area of the Wrexham County Borough Council. His applications for planning permission to live on the land with his wife and six children were refused in October 1994, December 1995 and July 1999. He and his family were then living on a local authority site at Croesnewydd, but in September 1999 that site was closed and they were evicted. They transferred to another local authority site nearby at Ruthin Road but were subjected to violence at the hands of other residents of the site and in September 2000 moved to the land which Mr Berry owned. The local authority warned him that he had no planning permission to use the site in this way, and called on him to rectify this breach of planning control. His solicitor was instructed to say that Mr Berry would apply for planning permission. The local authority however resolved to issue an enforcement notice and seek an injunction. The application for an injunction was made on 26 October 2000. The hearing of this application was stayed to await the outcome of an application pending in the European Court of Human Rights ( Chapman v United Kingdom (2001) 33 EHRR 399). On 12 February 2001 the application came before McCombe J, who granted an injunction requiring Mr Berry to remove himself and his caravans and vehicles from the site on or before 20 April 2001. Mr Berry's appeal against this decision was allowed by the Court of Appeal in the decision under appeal. He had by this time, following the grant of the injunction, again applied for planning permission which had again (July 2001) been refused. This refusal prompted the local authority to issue the enforcement notice authorised some 10 months earlier, which it did on 31 July 2001. Mr Berry appealed both against the refusal of planning permission and against issue of the enforcement notice. On 18 June 2002 (well after the decisions of the judge and the Court of Appeal) both appeals succeeded. The local authority's challenge to those decisions was rejected by Sullivan J in the Administrative Court but awaits a further hearing by the Court of Appeal.

4

There was evidence before McCombe J, to which he referred in his judgment (transcript, page 10), that Mr Berry had a history of cardiac illness. He had had a severe heart attack in about 1997. He remained under the care of a consultant cardiologist. His symptoms of chest pain were largely controlled by medication, but occasional emergencies required his admission to hospital.

5

No site was available for occupation by Mr Berry and his family within the local authority's area, except at Ruthin Road.

Mr Searle and others

6

In May 2000 Mr Searle (whom it is unnecessary to distinguish from his co-respondents) bought land within the area of the Chichester District Council from a Mrs Collins for £14,000. She had previously applied for planning permission for residential occupation of the land but had been refused. The land was not within a Green Belt but was in an area where development was closely controlled. Mr Searle was told by the local authority that planning permission was needed to move a mobile home on to the land, and gave more than one assurance that he would not do so, but by 12 June 2000 he had moved two such homes on to the site. He requested a form to apply for planning permission and asked that enforcement action be deferred, but on 19 June the local authority resolved to apply for the grant of an injunction. On 22 June application was made and on 30 June an injunction was granted by Judge Barratt QC, who ordered that both mobile homes be removed forthwith. The Court of Appeal allowed Mr Searle's appeal against that order in the decision now under appeal. After that date, the local authority issued an enforcement notice and Mr Searle appealed against the issue of that notice and also against the refusal of planning permission. It seems that an inquiry was held, the outcome of which is unknown to the House. But Mr Searle and his co-respondents have not appeared to resist the local authority's appeal to the House or uphold the decision of the Court of Appeal. This appeal therefore raises the same issue of principle as those of Mr Berry and Mrs Porter, but whatever the outcome of the appeal there can in this case be no question of remitting the matter to the trial judge or re-imposing the injunction, which is understood to have been overtaken by events.

Mrs Porter

7

Mrs Porter has lived with her partner in a caravan on a site within the Green Belt at Iver in Buckinghamshire since 1985 when she bought the land. It is within the area of the South Buckinghamshire District Council. She has never had planning permission to live on the site, which her partner has used for breeding and dealing in horses. Applications for planning permission made by her in 1988, 1992, 1993 and 1997 were refused, and her appeals against these refusals were either withdrawn (1992, 1993) or dismissed (1998). Enforcement notices were issued in 1987 and 1993: she was fined for non-compliance with the earlier of these notices in 1988; her appeal against the latter was dismissed in 1994. In September 2000 a further application for planning permission was refused, but she appealed and following a public inquiry in January 2002 an Inspector, in February 2002, allowed her appeal and granted her planning permission limited to her personal occupation and requiring removal of her caravan as soon as she no longer needed it. The reason given by the Inspector was that

"The status of [Mrs Porter] as a Gypsy, the lack of an alternative site for her to go to in the area and her chronic ill health constitute very special circumstances which are, in this case, sufficient to override national and statutory development GB policies."

The local authority challenged the Inspector's decision in the Administrative Court before Judge Rich QC in September 2002, but unsuccessfully. Permission was given to the local authority to appeal to the Court of Appeal against his decision, and on 19 May 2003 the appeal was allowed. Meanwhile, however, the present proceedings had been initiated. The local authority provisionally decided, subject to legal advice, to seek an injunction on 13 January 1999. Application was duly made on 1 December 1999 and on 27 January 2000 Burton J granted an injunction requiring Mrs Porter to cease to use the land for the stationing of caravans on or before 27 January 2001. It was Mrs Porter's appeal against that decision which led to the judgment now under appeal before the House. It will be noted that planning permission had not been granted to Mrs Porter when Burton J and the Court of Appeal made their respective decisions.

8

Mrs Porter was born in 1942. There was evidence before the trial judge that she suffered from chronic asthma, severe generalised osteo-arthritis and chronic urinary tract infection. Her mobility was poor as a result of her osteo-arthritis and asthma. She suffered from depression and was taking painkillers, antibiotics, antidepressants and medication for her asthma. Her general practitioner considered that eviction from the site would be detrimental to her health, which has worsened over the last few years.

9

There were three residential Gypsy sites within the local authority's area, but all of them were full and had long waiting lists; there would be a delay of up to three years before a pitch was likely to become available.

Planning control

10

Over the past 60 years there has been ever-increasing recognition of the need to control the use and development of land so as to prevent inappropriate development and protect the environment. This is, inevitably, a sensitive process, since it constrains the freedom of private owners to use their own land as they wish. But it is a very important process, since control, appropriately and firmly...

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