England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MRS JUSTICE HALLETT)

		Royal Courts of Justice Strand, London WC2 Wednesday, 3rd October 2001

Wednesday, 3rd October 2001

1. THE VICE-CHANCELLOR: Lord Justice Buxton will give the first judgment.
2. LORD JUSTICE BUXTON: The very long drawn out events from which these appeals arise go back as far as 1986. Put very briefly, the case concerns the erection of two buildings on an area of alleged (because the matter is contested) agricultural land by Mr Le Roi, who is the appellant in this court. I say that the case originally concerned, as it did, two buildings or barns, but now only the smaller of those buildings is in issue before this court, the erection of that building having commenced in 1988.
3. According to Mr Le Roi's evidence, which is not contested before this court, it was his initial intention to use the barn for the production or culture of calves or small cows, but he rapidly changed his mind and converted his intentions to the growing of mushrooms. That activity was abandoned by him somewhere around 1991, and from 1992 onwards the building was either converted or adapted for residential purposes, and from time to time, in circumstances that I shall have to return to, Mr Le Roi and his family have lived there. We are told by counsel on his behalf that in fact he had been paying council tax in respect of that property and his residence in it.
4. The erection of this building was, almost from the first, regarded by the appropriate local authority, the Salisbury District Council, as being in breach of planning control. An enforcement notice was served as early as December 1988 and a stop notice served on Mr Le Roi requiring him to cease work.
5. In respect of that building, and also of the larger other barn to which I have already made reference, there was then an extensive history of attempts to enforce what the local authority regarded as breaches of planning control. For reasons that in the context of the present judgment it is not necessary to enter into, the enforcement notices served in respect of both buildings were quashed on appeal to the High Court in November 1993. The court's order was that the matter should be reconsidered on appeal by an inspector, and so it was, and the enforcement notices in respect of both premises, including the building with which we are concerned, were upheld by the Secretary of State on the advice of his inspector in July 1994. Again it is not necessary, save in passing, to state what the area of dispute was between the parties and why the Secretary of State was persuaded that the enforcement notice had been properly issued.
6. It will have been noted that at no stage of this process was Mr Le Roi in receipt of planning permission. His case was either that he could benefit from the provisions of the general development order in relation to the development of agricultural land; or, alternatively, a matter that I shall have to go into in more detail, he had been so advised by the Council that he could benefit from those provisions as to estop or prevent them either from taking enforcement action against him.
7. The orders having been re-determined in 1994, no further steps were taken to comply with those orders though Mr Le Roi did seek, by that stage, a specific planning permission. In order to enforce those orders, the local authority brought proceedings for injunctions under section 187B of the Town and Country Planning Act of 1990. It is relevant to note the terms of section 187B(1):

"Where a local planning authority consider it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Part."

8. This section was inserted in 1991 to give an immediate right of recourse to the High Court to local planning authorities in cases where they considered, and were able to persuade the court, that injunctive relief, as opposed merely to the elements of relief that hitherto had been available in the planning system, were appropriate to the case in question.
9. That application came before Mr David Steel QC, as he then was, sitting as a deputy judge of the Queen's Bench Division on 9th May 1996. Although Mr Le Roi had been advised both by solicitors and by counsel expert in planning matters at earlier stages of the exchanges, when the matter came before Mr Steel he in fact acted on his own behalf. He filed evidence, which we have seen, setting out the history and why the injunction should not be granted. Mr Steel was not persuaded with those arguments and he made an order that was in two quite separate parts. Clause 1 of the order addressed what is called the larger building, the building with which we are not concerned. Clause 2 of the order reads as follows:

"The Defendant his servants or agents to demolish the building marked in green on the plan attached, "the smaller building", within six months of the final determination of the Defendant's appeal against refusal of planning permission ... if the said appeal is finally dismissed."

10. That is what happened. The appeal was unsuccessful and therefore Mr Le Roi became bound by and liable to obey the terms of Mr David Steel's order. He did not take the action that Mr Steel's order required, and the local authority accordingly made an application to the court to commit him for contempt. That application was made in April of the present year. It was opposed or met by Mr Le Roi in two ways. First of all, it was argued that it was inappropriate for the Council to seek to commit Mr Le Roi, or alternatively they were estopped from so doing, by reason of previous negotiations or encounters between Mr Le Roi and Council officers. Secondly, a separate application was made to the court for Mr Steel's order to be, as the application put it, "varied". The order that was sought was that the injunction granted on 9th May 1996 be varied so that clause 2 of the order, that which I have already read out, should be discharged. The grounds upon which it was claimed that section could be varied by the court were effectively the same grounds as those relied on to resist the application to commit. They read as follows in paragraph 41 of the application for variation:

"... the Applicant now seeks to apply for the variation of the injunction granted by Mr Steel QC on 9th May 1996 on the grounds that the learned Judge should not have granted the injunction in respect of the smaller barn in circumstances where:

(a) the Respondent ought to have been estopped from seeking the injunction by reason of the binding determination that planning permission was not required for the construction of the small barn;

(b) the Applicant's residential use of the smaller barn and the land itself was immune from enforcement action."

11. As so stated, those claims do not, on their face, indicate their full nature. Claim (a), which I will call "the estoppel claim", rests upon assurances or representations allegedly made by the Council's officers when in 1986 and thereafter Mr Le Roi was considering the erection of the building. Claim (b), which I will call "the ECHR claim", is quite different; it rests not upon what the situation was in 1986, but upon the state of affairs existing at the time of the application, by when Mr Le Roi had, as I have already said, adapted the barn for residential purposes. His claim was that respect for his family life under Article 8 of the European Convention on Human Rights precluded the Council from taking enforcement action, or at least ought to be taken into account before any decision to enforce was taken.
12. I will now deal with those matters in turn. First of all, estoppel. Mr Le Roi relies on one document and a number of encounters that he had with the Council's officers before and during the construction of the building. The document that he relies on is something called "The Booklet", which appears to be a booklet published by the local authority for help and information to persons who are considering development that might fall within the area of planning control. Relevantly, it sets out a number of items of development that "do NOT need planning permission". Of these one is as follows:

"An AGRICULTURAL BUILDING if it is under 12 metres high, more than 25 metres from a road, and it, and any others built within 90 metres during the last two years, cover less than 465 square metres."

13. The booklet then continues, after setting out other cases:

"Anyone who wants to know if he needs planning permission should contact the development control section of the District Planning Department ... for help and advice. If there is a dispute about the need for planning permission, the District Council can be asked for a formal determination under Section 53 of the 1971 Act. An appeal can be made to the Secretary of State against the decision."

14. That is what Mr Le Roi did. On the evidence that he has produced he went to the offices of the local authority in order to enquire as to the position with regard to the erection of the small barn. The local authority had no record of this encounter and the officer to whom he spoke, a Mrs King, has apparently left their employ, but they do not seek to gainsay, at least again for the purposes of these proceedings, the account that Mr Le Roi gives. That account is contained in a note that he made of the meeting on the day after it occurred, that is in November 1986, which reads as follows:

"On the Thursday 6th day of November 1986 at approximately 1.30 pm, I Robert John Williams Le Roi went to Salisbury District Planning Office at Windam Road Salisbury and ask about information on building regulations for construction of a barn/workshop. I was attended on by Mrs King and I asked: "What are the restrictions for building such a construction", she answered, "Well do you have over one acre of land", I replied,"Yes I do, just". She then said, "Good, well this is considered as agricultural unit and therefore this would be ok as long as the construction was at least 25 metres off the road and less than 5,000 sq ft. I then asked "is that all thats required", and she replied, "Yes it is"."

15. Mr Le Roi also seeks to rely on other indications that he says he was given by planning officers in the course of the actual construction of the building. We have been shown a number of internal documents of the Council that are relied on for that purpose. I do not intend to go into that matter in detail for two reasons. First, I respectfully agree with the analysis of the documents of Hallett J, the trial judge in this case, who considered that the planning officers were not directing themselves to the issue that is of concern to us and the particular representation allegedly made to Mr Le Roi, but were rather concerned principally to ensure that he did not construct a dwelling house. Secondly, I have to say that as a basis for an estoppel, on the strength of which Mr Le Roi claims to have worked and acted, these statements lose a lot of their force by reason of the fact that they appear only to have come into the case on being found within the Council's documents in the current year, 2001. Had they been of the cogent and persuasive nature that they would need to be in order to found an estoppel, one would have expected them to have been in Mr Le Roi's mind from the start of the process.
16. Be all that as it may, clearly the strongest point in respect of the estoppel that Mr Le Roi has to rely on is the conversation with Mrs King. That is to be looked at in the context of the booklet. Although the booklet did not of itself, as it seems to me, make a representation, or at least not one upon which Mr Le Roi effectively relies, because he went thereafter to see the Council, it is said to have assisted in this way, that it provides evidence of the sort of delegation of authority to Mrs King to give assurances in respect of planning matters on behalf of the local council that was identified as being required in the well-known case in this court of Western Fish Products Ltd v Penwith District Council and Another [1981] 2 All ER 204. In that case this court made two observations, if I may say so importantly relevant to our present case. The first was that in principle there can be no estoppel against statute. That is to say, a local authority statutorily obliged to enforce planning regulation should not be the subject of an estoppel. Secondly, however, there may be cases in which there has been either actual or ostensible delegation to an officer of the authority to make decisions on its behalf. In accordance with that principle and in accordance with the general rule of agency so far as ostensible authority is concerned, the officer himself cannot give himself authority to act on behalf of the Council. As Megaw LJ said on page 220 g to h, of the report:

"For an estoppel to arise there must be some evidence justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority."

17. Then Megaw LJ went on to give examples of what such evidence might consist of. In this case the evidence is the booklet, and Mrs King was acting within the ostensible authority granted by the booklet, whether intentionally or not on the part of the Council, in giving the assurance that she did.
18. It is important, however, to keep well in mind, particularly in the context of the Western Fish Products case, what was the nature of the exchange between Mr Le Roi and Mrs King, and therefore what she could be said to have been giving assurances about sufficient to found an estoppel. In Western Fish Products the issue was whether the local authority was estopped from granting a planning permission. As I have already said, the issue did not concern Mr Le Roi seeking any sort of permission from the local authority. Therefore, the estoppel that is said to be founded upon Mrs King's statement must be a representation as to enforcement action; that is to say, a representation on her part that because the development is not such as to fall outside the general development policy, no enforcement action would be taken. Although the matter was not put in quite that way, either in the submissions to us or in the court below, I have seen no other possible way in which the estoppel could be expressed.
19. The application both to commit and to vary, as it is said, Mr Steel's order both came on together before Hallett J, and it is from her decision not to vary the order, and also to commit Mr Le Roi, that this appeal comes. Before the learned judge below the whole matter of estoppel was investigated in detail, including the nature of the exchanges between Mr Le Roi and Mrs King and the circumstances in which they had taken place. There was no cross-examination of the witness and so the matter had to proceed on the witness statements and the documents. On that basis Hallett J considered that, on the facts and on the material that Mr Le Roi could deploy, the case did not, in any event, found estoppel and did not fall within the doctrine recognised by this court in the Western Fish Products case.
20. Before this court a preliminary and more fundamental difficulty has emerged. As I have said, Mr Le Roi's application was to "vary" the order of Mr David Steel, but reflection will indicate that to describe the application as one to vary Mr Steel's order, insofar as it was relevant to the matter before the court below, was in fact a misnomer. What Hallett J was being asked to do was to reverse the order that Mr Steel had made in regard to the smaller building. Indeed, that is what the application said in terms, because it will be recalled that it asked for Mr Steel's order to be varied so that clause 2 of it was discharged. In truth, therefore, the substance of the application before Hallett J was an application to one judge of the High Court to appeal against, or to say that there had been wrongly granted, an order made by another judge of the High Court.
21. I accept that it is possible in an appropriate case to discharge an injunction that has been granted by another judge and to have that discharge made by a judge of the same court as that judge. That jurisdiction should only operate, however, and can only operate, in a very limited category of case, most conspicuously where there has been a significant change of circumstances since the order was originally made. That is plainly not this case. There has been effectively no change of circumstance since Mr Steel made his order in 1996.
22. The estoppel now relied on before this court, and relied on before Hallett J, if it is a good argument, was and is a reason for not making the original injunctive order at all. If it was such a good reason, and it was conceived that Mr Steel should not have made the order for that reason, the remedy against his order was to appeal it. That was not done. Of course, I recognise that Mr Le Roi did not have the benefit of legal advice, but that cannot possibly allow the processes of the court to be subverted to the extent that an order that should have been appealed, which was thought to be wrong and was not appealed, can then, many years later, be sought to be challenged not by way of appeal, but by way of an application to another High Court judge.
23. In my judgement, therefore, it was in fact an abuse of the process of the court for the application to be made to Hallett J at all, and it was right to put on record that Mr Willers, who appears here as he appeared below for Mr Le Roi, very properly conceded that in the circumstances of this case that was so. The matter had, it should be said, been originally raised by the learned single judge who granted permission and then in more detail by the court itself. Mr Willers also accepted, as in those circumstances he needed to, that this appeal should thereafter proceed on the basis that Mr David Steel's order was a valid order, and was still extant in its terms.
24. However, nothing daunted by this, Mr Willers argued, and forcefully and effectively argued, that the estoppel arguments still should run and should be considered by this court. That was because they needed to be considered when the court, in its discretion, was considering whether to enforce Mr Steel's order by way of committal. Those matters should have been taken into account by Hallett J, or rather she should have formed a different view on them from that which, as I have already indicated, she did form; and this court should review all the evidence again in order to determine whether Hallett J had been right or wrong in thinking that there was no basis for an estoppel argument.
25. This was, if I may say so, with genuine respect, an ingenious way of approaching the matter, but it fails for two reasons, one of them specific to this case, the other of more general application.
26. The first reason is this. I have already said that there is no way of interpreting what is alleged to have passed between Mrs King and Mr Le Roi other than in terms of representations about the enforcement of planning control; that is to say, that if the representations did found an estoppel, it would be an estoppel against enforcement of planning control. But, as we have already seen, section 187B of the Town and Country Planning Act is itself an enforcement provision. It is a power given to the local authority precisely to take action in respect of breaches of planning control. That has already been done by the local authority, by successfully seeking the injunction from Mr David Steel. Enforcement has taken place and has taken place in terms and in circumstances that the appellant concedes he cannot challenge. Whatever else might be read into the statements of Mrs King, it cannot be the case that she represented that even if the local authority took steps to enforce a breach of planning control in this respect it would not seek any committal on the basis of such a breach. For that reason alone, therefore, it is, in my judgement, unnecessary to go into the detailed arguments with regard to whether or not an estoppel arose. As I have said, if the estoppel did arise, the local authority has, nonetheless, taken the matter before Mr David Steel and has achieved an order that Mr Le Roi now accepts he cannot challenge. I therefore do not go into the merits of the estoppel argument, though in so doing it should not be thought that I seek to disagree with what was said by Hallett J.
27. That, in my judgement, is the end of this point, but I will also say, secondly and more generally, that it is equally abusive to rely on the same points to resist the enforcement of an order, in this case the enforcement of Mr David Steel's order, as could and should have been taken against the making of that order in the first place. At the very least, when those points have not been taken to prevent the order being made it would need very strong reasons, none of which exist in this case, to permit them to be reintroduced at the enforcement stage. For that more general point, which does not depend on analysis of what Mrs King said or did not say, nor on the terms of section 187, I would also reject this argument.
28. I am bound to say, finally, on this part of the case that even if I were not persuaded in the terms that I indicated, I would have a particular difficulty in the context of the facts of this case. That is because although it is accepted that Mr Le Roi did originally intend agricultural use for these premises, since 1992 he has been occupying them as a residence; a state of affairs that by no conceivable stretch of the imagination could he think was in fact covered by anything that had been said to him by the local authority. Indeed, the material that we were shown from the local authority's files that Hallett J analysed cries out, as the judge found, that the local authority was telling him time and again that he could not occupy the premises for residential purposes. This application is to this court's discretion. I would be very hesitant to exercise a discretion founded upon an estoppel that was allegedly entered into in 1986 in a context of use of the premises for agricultural purposes to prevent enforcement action in the year 2001, when for nine years the building has been used in terms that under no circumstances whatsoever could be covered by that estoppel. However, we did not hear full or indeed any real argument on that point and I therefore do not rely on it. I mention it, however, to underline the disquiet that this aspect of the case nonetheless causes me.
29. The second ground upon which enforcement is sought to be resisted is, as I have said, the European Convention on Human Rights. That is something, in terms of legal effect, that can properly be said to have arisen since Mr David Steel issued his order.
30. As I have said, the facts are that Mr Le Roi turned the mushroom farm into a residence, and has resided there with his wife and family. He does not at present reside there, but resides elsewhere in less commodious accommodation for reasons that were not fully gone into, but I believe have something to do with further building work being carried out on the small barn. The argument is that to cause him to demolish the small barn would interfere with his right to family life by depriving him of his residence.
31. I am prepared to accept that, potentially, an enforcement action under planning legislation can be met by a claim based upon Article 8, but I am absolutely clear that no such claim can possibly be made in this case. First of all, as Ms Lieven pointed out for the local authority, Mr Le Roi is not even living on the premises at the moment and therefore the effect of having to demolish will not in fact be that he is deprived of accommodation, even though he may be forced to live in less agreeable circumstances than otherwise he would. Even leaving that point aside, however, this was a case, first of all, where originally Mr Le Roi was adamant that he was not going to live in the house at all, and his conviction to that effect was the whole basis of his estoppel claim; but, secondly, well knowing that he could not have any planning right to live there, he chose to create this building in 1992. It would, in my judgement, be wholly inappropriate and a misuse of the important values that the Convention incorporates if that sort of issue were allowed to offset the very important public interest in an effective system of planning control. The judge dealt with this matter cogently, if I may say so, and forcefully, at page 20E of her judgment, a passage that I will quote:

"As far as the European Convention on the Human Rights Act is concerned, the Council themselves raised the question of the family's accommodation some time ago, conscious of their possible duty to re-house the family. Mr Williams has always maintained that he did not build this unit as a house. He has always maintained he never intended to live there. He was well aware he would not get planning permission to live in the building. He knew full well he should not move his family into the building, either in the short or the long term, yet Mr Williams spent additional sums finishing and converting the barn into a home ... Fortunately, the family has other accommodation available to them, owned by Mr Williams and presently occupied by the family. Mr Williams may well face financial difficulties as a result of my order. But it is difficult to quantify to what extent those difficulties are due to money he spent on this building after he was told in no uncertain terms he should stop work, certainly in November and possibly in October 1988.

It is also unclear on the figures before me what effect my order will make on the family's present living arrangements. One thing is for sure, the family will not be able to return to live in the barn, but they should never have been living there. I am far from persuaded that they will in any event be forced to leave the flat. I am not satisfied therefore in all the circumstances of this case that the protection offered by the European Convention under the right to property or the right to family life affords Mr Williams any assistance."

(I should say by way of a footnote that during proceedings below the appellant, Mr Le Roi, appears to have been referred to as Mr Williams.)

32. In my judgement, those observations of the learned judge are entirely persuasive, and demonstrate that this is, on the facts of this case, a wholly inappropriate case in which even to consider relief in respect of Article 8; and I do not do so.
33. The further matter that we have to consider is the question of delay. It will have been seen from the history that I have given that a substantial period of time was allowed to pass since the order was made before the local authority took enforcement action. We have been taken to some extent through the detail of that and I am satisfied, as was the judge below, that although, as Ms Lieven has properly conceded, matters should have progressed more swiftly, there has not been delay of the order that would cause this court, and should cause this court, to withhold relief to the local authority. I say that in a context where we are dealing with the obligations and duties of the local authority to enforce in the public interest important measures of planning control. The extent to which an authority can properly be prevented from so doing by reason of delay is, to put it at its lowest, a matter of some obscurity. It raises potential issues not unlike those that applied in the Western Fish Products case. We do not, however, need to descend into that difficulty because the delay, measured against the important need to enforce planning control in this case, comes nowhere near to raising a difficulty for the local authority or for the court.
34. In the court below Mr Le Roi was given 16 weeks to comply with the order. That period should properly be extended by reason of the fact that he was given leave to appeal to this court, and the local authority is content with a further such extension from the date of today's judgment to enable such compliance to take place.
35. The learned judge determined that the appropriate period of imprisonment on breach of the order should be one of three months and I see no reason to differ from that view: which, in any event, is one for the discretion of the judge below.
36. I would dismiss this appeal. I would order that there be compliance with the order of Mr David Steel QC within 16 weeks of the judgment of this court. In default of such compliance there should be a period of three months' imprisonment. I would only end by echoing an observation properly made by Ms Lieven for the Council that 16 weeks is a period during which Mr Le Roi should actively seek enforcement of Mr David Steel's order. It is not a pause or period of delay before the next stage in this long drawn out legal saga.
37. LADY JUSTICE ARDEN: I agree with my Lord, Buxton LJ. I would like to stress that Mr Willers, for the appellant, whom I will refer to as Mr Williams, has sensibly accepted that it is now too late to appeal against the order of Mr David Steel QC. That order required the appellant to demolish the smaller barn unless he first obtained planning permission. He was present when that order was made, albeit that he was unrepresented. That order remains in force and, in my judgment, the primary duty of the court is to ensure that that order is complied with, as with any other requirement of the law. That is what is required by the rule of the law which is fundamental to a civilised society. That point is reinforced by the fact that the order was sought and made by the local authority in pursuance of its public duties and under a jurisdiction specifically conferred on local authorities for the purpose of enforcing planning control. Circumstances might exist which justify the court in not enforcing an order in these circumstances but they would have to be exceptional. The exact scope of the circumstances constituting any such exception does not have to be determined in this case. It would have to be something which would justify a departure from the principle which I have already identified, such as a breach of Convention rights. Mr Willers has not identified the criteria which would be necessary in order for the court to exercise such a discretion.
38. However, whatever the criteria may be, it could not, in my judgment, extend to the facts of this case. As I see it, the highest which the case can be put is that the booklet which the local authority produced to members of the public to tell them about planning restrictions failed to tell them what an agricultural holding was for the purpose of the exception in the General Development Order and that it had to be land actually used for agricultural purposes. The booklet which the Council produced used the phrase "agricultural building" but without explaining it. That document never set out to give comprehensive advice and the brief oral advice that Mrs King gave and which Buxton LJ has described, was not, in my judgment, sufficient to justify Mr Williams not making any further enquiries, nor would it justify this court in declining to enforce the order in all the circumstances of this case. The barn which was ultimately built and with which we are concerned was an entirely different type of agricultural building than was originally contemplated. It was ultimately a construction of a much more elaborate nature which was capable of being converted and was converted, again without permission, into a dwelling.
39. As Ms Lieven has pointed out in her brief and helpful submissions, if the court refuses to make a committal order in this case, the whole enforcement procedure will be rendered nugatory. I note that Mr Williams was warned to stop construction of the smaller barn as long ago as 1988.
40. I have mentioned Convention rights, however, in this case enforcement of the order of Mr David Steel QC would not breach the appellant's Convention rights under Article 8. He and his family lived at the property for a number of years but they do not do so now. I accept Ms Lieven's submission that their right to a home is accordingly not violated by the order. It is not enough to say, as Mr Willers submitted on this appeal, that Mr Williams would prefer to live in the barn as he could then let the flat he currently occupies to service the mortgage on the barn and the flat. As I see it, that has nothing to do with Article 8.
41. I would like to mention delay. The position adopted by the Council was, very fairly, to accept that there had been considerable delay. I agree with what Buxton LJ has said on the subject but would like to add this. Some delay was caused by the fact that the Council's principal solicitor received two telephone calls at her private address from the appellant. She was personally put off by this for reasons that one could understand, but the matter should either have been reported to senior council officers and put into the hands of some other solicitor or outside solicitors, or reported to the police, rather than that the Council should have done nothing. However, in all the circumstances of this case, I agree with Buxton LJ that delay cannot justify not enforcing the order of Mr David Steel QC.
42. Finally, I hope the appellant will make every effort to comply with the order well within the period of 16 weeks' suspension proposed by Buxton LJ, with which I agree. It is the period which has been put forward by the Council. It is a far longer period than is necessary for the physical demolition of the barn. The appellant should bear in mind that the sanction is a very serious one. If the court has to consider any further application for contempt, it might take an even more serious view of the matter.
43. THE VICE-CHANCELLOR: I also agree. The order made by Mr Steel on 9th May 1996 was not appealed then and, as counsel for Mr Williams accepts, it is much too late to try and appeal it now. Thus it is, and has since May 1996, been final and binding.
44. As Mr Willers frankly accepted, it was an abuse of the process to seek to persuade Hallett J to vary the order by excluding from it the injunction which required Mr Williams to demolish the small barn.
45. There can be no dispute that Mr Le Roi has failed to perform that part of the order which required the demolition of that building by 30th January 1997 and, accordingly, he has been in contempt of court for now in excess of four years.
46. It appears to me that, except in the rarest circumstances, and this case is not one of them, the events which preceded the making of the order cannot be material to the consideration of whether to enforce it by whatever may be the appropriate means available to the court. For my part, therefore, I regard all the events occurring before 9th May 1996 as water under the bridge. The order was then made. It is final and binding. The question is, the contempt being admitted, whether or not it should now be enforced.
47. I accept that the court has a discretion in that regard: see the judgment of Staughton LJ in Guildford Borough Council v Smith [1994] JPL 734 at 740. The discretion was primarily that of Hallett J and the question is whether it has been demonstrated that she made an error of law or fact or was so plainly wrong as to vitiate the exercise of her discretion. So far as delay is concerned, she squarely faced that issue and reached the conclusion at page 22, letter c, of the transcript of her judgment, at which point she said:

"There has, however, been unnecessary delay, into which I need not go, on the part of the council in enforcing the order. It is, therefore, in my judgment, appropriate to give Mr Williams more time to comply with it."

48. That she did and that seems to me to be a wholly appropriate response to the point that was made against the enforcement of the order by means of committal.
49. There is also the question of the effect of Article 8 of the European Convention on Human Rights. Again, the judge frankly faced that and reached the conclusion at page 21 of the transcript of her judgment, where she said:

"I am not satisfied therefore in all the circumstances of this case that the protection offered by the European Convention under the right to property or the right to family life affords Mr Williams any assistance."

50. It may be that there is some difference between the judgments of the other members of the court as to whether Article 8 applies on the facts of this case given that for a period of at least some months Mr Le Roi has not resided at the property in question. For my part, I find it unnecessary to reach a final conclusion on the point because I am satisfied that if Article 8 did apply, then the treatment that the judge afforded was entirely appropriate in the circumstances. I would not wish to be thought to be reaching any final conclusion on whether it did or did not given the fact that I do not think we have had as full argument on the point as is capable of being maintained. That is not a criticism of either counsel, merely an explanation for why I prefer to continue to sit on the fence.
51. It follows that I see no error either of law or fact in the approach or the decision of Hallett J and I would therefore dismiss the appeal from the order she made. It also follows, given the concession made by the Council, that the period of suspension should be extended until the expiration of 16 weeks from today. I would reiterate the point made by my Lady, Arden LJ, that that period is designed to give Mr Le Roi more than adequate opportunity to demolish the building, not to see how further to frustrate the enforcement of the planning legislation by delaying yet further its demolition.
52. The appeal is therefore dismissed.
Order: Appeal dismissed with costs. Detailed assessment of both sides' costs.