COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE BRUNNING
(Sitting as a Deputy Judge of the High Court)
Thursday, 21st June 2001
B e f o r e :
SIR MURRAY STUART-SMITH
|HERTSMERE BOROUGH COUNCIL||Appellant|
|- v -|
|(1) DOMINIC HARTY|
|(2) JOHN CASEY|
|(3) MR SMITH|
|(4) AARON JONES|
|(5) PERSONS UNKNOWN||Respondents|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR HUNT (instructed by Lance Kent & Co, Buckinghamshire HP5 1EG) appeared on behalf of the Respondent
Crown Copyright ©
Thursday, 21st June 2001
"The Learned Judge, in granting the interim injunction sought by the Claimant, erred in law in four respects:
(1) in holding that the Claimant Council was not required as a matter of law to carry out welfare inquiries into the particular circumstances of the Defendants and their families before taking its decision to evict the Defendants by seeking an injunction;
(2) in holding that the Claimant Council had acted compatibly with Article 8 ECHR, in circumstances in which the Council had not obtained the necessary information to enable it to carry out the necessary exercise of determining the proportionality of the interference with Article 8 rights;
(3) in holding that the Claimant Council did not err in law in treating Article 8 as a mere 'material planning consideration'; and
(4) in granting the interim injunction, in circumstances in which the Claimant Council had failed to obtain the necessary information about the Defendants and failed to carry out a proper Article 8 balancing exercise, and before a Planning Inspector carries out that balancing exercise at the inquiry into the Defendants' appeal against the refusal of planning permission, the Court itself acted in breach of Article 8 and therefore unlawfully under s 6(1) HRA 1998."
"The Learned Judge erred in law in holding that the Claimant Council was not required as a matter of law to carry out inquiries of a welfare nature before taking its decision to evict the Defendants by seeking an injunction. The Learned Judge held that the Claimant Council was entitled to take into account that a firm of solicitors as experienced as that representing the Defendants was aware of the needs of the individuals on the site and well able to put before it all the relevant material and that, in light of the information before it when it took its decision, the Council was not required to carry out the detailed analysis recommended in the DETR's Good Practice Guide, Managing Unauthorised Camping.
On ground (iii) the suggestion in the solicitor's note of judgment that the judge had found a failure to carry out an inspection is, it turns out, an unfortunately truncated account not of what the judge found, but of what Mr Hunt had submitted to the judge. In his skeleton argument to us Mr Hunt suggests that it is inconceivable that this could have contributed to the grant of permission to appeal. I am afraid he is wrong in that regard. It is certainly conceivable that this error may have had an influence upon the grant of permission on grounds 1 and 2; but Mr Hunt is right to submit that paragraph 9 of his skeleton, which was also before me and on which I now place some weight, was more specific. It said this.
"It is common ground in this case that the Council did not itself undertake any welfare inquiries. It relied entirely on the material which had been placed before it by the defendant's legal representatives. The witness statements of Mr Casey and Mr Jones, which were compiled in great haste the day before the hearing due to the short notice of the application, contained a great deal of evidence about the detailed circumstances of the individuals and how they will be affected by eviction, which was not contained in the letters sent to the Council before it made its decision to proceed with an application for an injunction."
"In granting the interim injunction in circumstances in which the claimant council had failed to carry out a proper Article 8 balancing exercise..."