England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(JACK J)
(Application of defendants for PTA, EOT AND SOE)

		Royal Courts of Justice Strand London WC2 Thursday 23rd August 2001

Thursday 23rd August 2001

1. LORD JUSTICE SEDLEY: This is an application for permission to appeal with, if it is an appropriate case for appeal, an extension of time and a stay of execution.
2. The appeal which Mr Gordon Nardell wants permission to bring is against a judgment of Jack J given on 9th May 2001 granting orders under 187B of the Town and Country Planning Act 1990. The object of these orders was to bring to an end a series of long-standing breaches of planning control on the applicant's land, essentially the installation first of a caravan and then of a mobile home, the addition to the latter of a conservatory and a porch, and, further, the enlargement of stables which already existed on the land.
3. Following service, as the judge found to have occurred, of enforcement notices the applicants were prosecuted on all but the conservatory aspect of these developments and were convicted in the Crown Court. Permission to appeal was refused to them. Then, faced with continuing noncompliance, the local planning authority took these proceedings. They were tried over four days by Jack J in Manchester; and it is clear from the materials in the well-prepared file that he had a great deal of highly expert professional assistance on both sides, not least from Mr Nardell.
4. The materials before me on this application include not only those background documents but importantly the appellant's chronology, the sheer length of which is some testimony to the complexity of the case, the judgment of Jack J, the grounds of appeal advanced against that judgment, the very full skeleton argument of Mr Nardell in support of those grounds, then the initial decision on the papers, which was to allow the respondents to show cause why permission should not be granted, followed by the respondent's very full submission in response. This was followed by my initial decision on the papers that this was not, in my then view, an appropriate case for the grant of permission to appeal, giving very short reasons why that was so. To this material Mr Nardell has responded with supplementary submissions in writing, which he has briefly developed today in oral form.
5. It might have been sufficient for me simply to say that, taking all this matter as read - for it would take the better part of a day simply to read it out - I have found the respondent's arguments persuasive to the point where they rob Mr Nardell's grounds of any realistic prospect of success; but to do so would be discourteous and unjust to the skill which Mr Nardell has deployed and I will say something, therefore, about why I adhere to that view, notwithstanding the two points that Mr Nardell has sensibly flagged up as his best points today.
6. The first of these is whether it was sufficiently established before the judge that there had been a breach of planning control apt to be restrained by injunction. The effect of section 285 of the Act, upon which I placed some weight in my written reasons, is said, with some cogency, by Mr Nardell not to have featured prominently in the judge's own reasons and anyway to create no more than a presumption of validity which by itself creates no presumption of breach.
7. Accepting that all this may be so, Mr Nardell still cannot, it seems to me, get over the fact that breach was independently proved to the judge's satisfaction. He spells out why in paragraphs 32 to 34 of his judgment. It is true that those paragraphs themselves contain qualifications and, Mr Nardell would say, gaps. At one point the judge says that the pre-history of the mobile home, namely the stationing of the caravan, had been investigated by the council, whose determinations of fact had not been appealed and were therefore not something which the judge was now in a position to redetermine. Later in those paragraphs the judge says:

"In so far as it may be relevant, it seemed to me that Mr Nardell's submission concerning the stable building faced a number of difficulties."

8. It seems to me that the judge was seeking to draw a line somewhere in his response to the seductive invitation that had been advanced to him to, in effect, redetermine the entire set of planning issues from A to Z. But he was, in my judgment, eminently entitled at some point - and I think the point that he chose was an entirely defensible one - to say that the place for these submissions was within the planning procedures, and that it was not right to defy the notices which he found to have been served, to take no advantage or unsuccessful advantage of the planning procedures, to hold out after conviction in spite of a heavy fine, and then, when sought to be enjoined, to come to the court and argue everything over again.
9. I do not accept in any event Mr Nardell's ingenious written argument that section 187B falls outside the pattern of statutory enforcement. In my judgment it is plainly slotted in. That is a further reason why the judge, in exercising this new statutory jurisdiction, was entitled to place some reliance upon the planning procedures as sources of fact finding which it was not for him to reinvestigate.
10. The other issue that Mr Nardell has helpfully flagged up today relates to the European Convention on Human Rights. It was common ground before the judge that his decision must itself be Convention compliant. That meant that he must have regard to the question, first of all, whether any order that he made was going to interfere with prima facie Convention rights of the applicants - in this case their right to respect for their home under Article 8 and their property rights so far as they are protected by Article 1 of the First Protocol. Moreover, Mr Nardell can justifiably say that the jurisprudence of the Court of Human Rights, which requires domestic courts to think methodically about the proportionality of what they are doing, is, by virtue of section 2 of the Human Rights Act, to be taken very seriously into account by our domestic courts.
11. In support of all of this the judge had the very great advantage of an excellent skeleton argument, which I have read now more than once, put forward by Mr Nardell, spelling out, first, the principles, and secondly, the content of his submissions as to why it would be disproportionate to make an order.
12. The judge also had the local planning authority's contrary arguments. What he ultimately said about it was this in paragraph 37:

"I do not consider that the proposed order will infringe the rights of Mr and Mrs McMahon under either Article 8 of the Convention or Article 1 of the First Protocol. I refer to the second paragraph of each Article. In my view the order is necessary to uphold the provisions of planning law and thereby the protection of the environment, and those provisions come within the ambit of those paragraphs."

13. I think, having heard admittedly only one side, that there is force in the criticism of that paragraph as being itself condensed almost to the point of opacity as to why it was that the judge considered that an injunction would be Convention-compliant in the particular circumstances of the case. But I do not think this is the end of the matter. If I ask myself: has an appeal on this point a reasonable prospect of success, I have to cast my mind forward to what this Court would do if it accepted Mr Nardell's criticism. It would without doubt do the proportionality exercise - if I can call it that - itself, because there is a need for finality in this matter. If it did so it would come to the relevant questions in the context of an election by these two applicants to move into a mobile home which they had brought on to their own land. It could barely be further from the issues of enforced immobility of people who are historically nomadic to which Mr Nardell has rightly drawn my attention in other cases, a group of whom have been given permission to appeal and are awaiting hearing before this Court. Those issues simply do not arise in this case.
14. If one goes very briefly to the checklist that courts need to run through, the first question, 'Was there a legitimate and recognised purpose for the order sought?', the answer is plainly 'Yes'. Mr Nardell, I do not think, contends otherwise. If one then asks, 'Were any milder means of effecting that purpose available?', the answer is equally plainly 'No'. Enforcement notices, conviction and fines had all failed and the unlicensed developments were still there. To the question 'Was then the interference which an injunction would involve with the prima facie rights a disproportionate interference', it seems to me that this Court could only come to one answer and that is 'No'. To leave the applicants in breach would be to treat their rights as unqualified when they are in truth qualified, and qualified precisely for the kinds of purpose for which this injunction was designed. The land remains theirs. It was their choice to develop without permission. It seems to me that it could only be regarded as proportionate, following the long history of noncompliance and defiance which preceded this order, to deprive them of the fruits of their noncompliance by letting the order go.
15. Today Mr Nardell tells me that the applicants are actively seeking a grant of planning permission to legitimise that which they have so far done illegitimately. That may well be so; but if it were a reason for holding up an otherwise justified injunction, section 187B would cease to have content or effect because there is always the possibility of seeking permission for something which so far has not been permitted. It cannot, in my judgment, afford an answer if there is not otherwise an answer to the grant of an injunction.
16. Although, therefore, I see the force, I hope, of Mr Nardell's arguments, not only those developed orally today but the others which I have considered with care on the papers, none of them seem to me to afford his proposed appeal a sufficient prospect of success for the grant of permission. So, without turning to the question of extension of time, I refuse him permission.
ORDER: Application for PTA refused. Detailed assessment of applicants' community service funding.