England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE RAFFERTY)

		Royal Courts of Justice Strand London WC2 Friday, 17th May 2002

Friday, 17th May 2002

1. LORD JUSTICE SCHIEMANN: I will ask Lord Justice Laws to deliver the first judgment.
2. LORD JUSTICE LAWS: This is an adjourned application for permission to appeal against an injunction granted by Eady J on 20th July 2001 after a contested hearing in which the applicant appeared in person. The injunction was given on the application of the Mid Sussex District Council. It was to prohibit the applicant from stationing vehicles, mobile homes or caravans on a plot of land known as Small Acres in Clappers Lane, Fulking, West Sussex, and to require the applicant to remove any such mobile homes and so forth and also certain identified structures from the land.
3. The land falls within a designated area of outstanding natural beauty. It has been in the ownership of the applicant, who is a gypsy, since 1988. It is now occupied and was at the time of the hearing before Eady J occupied by a lady called Lucia Elliston who is, we understand, the applicant's tenant. She lives in a mobile home there together with her eight year-old son who unfortunately is an asthmatic and has special educational needs. It is said that he has suffered no attacks since they went on to the land at Small Acres and has over that period been in good health. Miss Elliston was not a party before Eady J, though she put in an affidavit (to which I will refer) and attended the hearing. She as well as the applicant have been represented before us today by Mr Willers of counsel.
4. On 25th January 2002 I adjourned this application to be restored on notice to the respondent local authority with appeal to follow if permission were granted. The application for an injunction was made by the district council pursuant to section 187B of the Town & Country Planning Act 1990, which provides:

"(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.

(2) On an application under sub-section (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."

5. To understand the case it is necessary to say a little about the somewhat convoluted planning history. A number of temporary planning permissions were granted for the siting of a single caravan on the land between 1952 and 1980. In 1977 the land was bought by Mr and Mrs Dowsett. They obtained a planning permission on 22nd July 1980 for the siting of a residential caravan, but this was to be "discontinued permanently" on 31 March 1985. By condition 2 of the permission it was provided:

"This permission shall enure for the benefit of Mr and Mrs M E Dowsett only and shall not enure for the benefit of the land."

6. In 1981 Mrs Dowsett applied for a permanent planning permission for the siting of the caravan, but on 20th October 1981 a permission was granted subject to exactly the same conditions as that of 22nd July 1980. The conditions were appealed to the Secretary of State but that appeal was dismissed on 26 May 1982. A further application was made for planning permission "for renewal of permission for mobile home", but that was refused by the Council on 15 March 1985 and there was no appeal. Then on 16th April 1985 the Council issued an enforcement notice alleging a breach of the time condition in the planning permission of 20th October 1981 on the ground that the mobile home had not been removed by 31st March 1985.
7. That was appealed by the Dowsetts and it is convenient to set out the judge's description of what happened (at paragraph 10 of his judgment):

"Mr and Mrs Dowsett appealed against the enforcement notice to the Secretary of State who, again appointed an inspector to enquire and report. It was recommended that, if the Secretary of State were minded to grant permission for the development, it should be 'personal to the appellant and her husband and subject to landscaping and the colour of the mobile home as recommended by the Council'. In due course, the Secretary of State upheld the appeal in a decision letter dated 29th August 1986, and he granted planning permission for the continued stationing of a mobile home for the purpose of human habitation - without any need for compliance with the original Condition 1 of the planning permission dated 20 October 1981 [the time condition]. The letter from the Secretary of State failed to refer to the 'personal' condition but it was indicated in the body of the decision (Paragraph 8) that 'a planning permission should, as recommended by the Inspector, continue to be exercised for the benefit of your client and her husband only.'"

8. Then, as I have said, the applicant bought the land in 1988.
9. On 27th December 1989 the respondent district council wrote to the applicant's planning adviser, Mr Titterell, in part in terms as follows:

"Although the Secretary of State in paragraph 8 of his letter of 29th August 1986 made it quite clear that the planning permission should continue to be exercised for the benefit of Mr and Mrs Dowsett, this intention is not carried forward in his formal decision in paragraph 9.

You will see that the enforcement notice has been quashed and a permission granted for the continued stationing of a mobile home for the purposes of human habitation without complying with temporary condition No.1 attached to the permission granted under reference FK/15/81. The Council's view is that the Secretary of State, in his formal decision should have expressly made his permission subject to personal occupation by the Dowsetts. He did not do this and consequently the view is taken that the mobile home can be occupied by anyone."

10. There is then at the end of the letter a signature followed by the words "for District Planning Officer."
11. A further caravan seems to have been put on the land by 1991, and on 6 December 1994 the Council issued an enforcement notice to ensure that only one mobile home remained on the site. There was no suggestion of breach of any occupancy condition to the effect that only the Dowsetts might enjoy the permission, and of course the Dowsetts had long since departed. This enforcement notice was complied with. There was further enforcement action by way of two enforcement notices issued on 17 February 1997. One alleged an unauthorised change of use, that is to say the stationing of two mobile homes and the siting of caravans, the other alleged the erecting of buildings without permission. Appeals against the enforcement notices were dismissed on 28th January 1998. In the course of his decision letter the Secretary of State's Inspector said this (paragraph 9):

"I next need to consider the effect of the planning permission granted on appeal by the Secretary of State in 1986. As you know, I queried with the Council their interpretation of that permission, and they maintain their view that in view of the terms of S.88 of the 1971 Act there is now an unrestricted planning permission for the stationing of a residential mobile home. In my opinion, however, the deemed application which was before the Secretary of State was under the provisions of Section 32(1)(b) of the 1971 Act [Town & Country Planning Act 1971] to continue the use of the land without complying with the condition which had been breached. (Condition 1), a condition subject to which the previous planning permission was granted. That was the permission actually granted, in exercise of his powers under Section 88B(1)(a). I consider the effect of that permission was to perpetuate the right of Mr and Mrs Dowsett to continue that use by virtue of the Council's permission of 1981, but the personal condition remained in effect."

12. That reasoning is a little compressed in view of the scope of the points now taken on behalf of the applicant. It is enough if I say the reasoning there seems to me to be correct.
13. An appeal against the Inspector's decision was dismissed in the High Court on 26 January 1999; but meanwhile another enforcement notice had been issued. Eady J takes up the story thus (paragraph 18):

"The Council issued a further enforcement notice on 11 May 1998, alleging that the permission granted by the Secretary of State on 29 August 1986 had been subject to the condition that 'this permission shall enure for the benefit of Mr and Mrs M E Dowsett and shall not enure for the benefit of the land'. This condition, it was said, had been breached in that the mobile home stationed on the land was being used by somebody else. The notice accordingly required the cessation of the use of the land for stationing a mobile home for human habitation purposes, and also the removal of the mobile home together with all items and materials associated with its residential use.

19. The Defendant appealed to the Secretary of State and an inspector was appointed, who dismissed the appeal and upheld the notice by a letter of 18 June 1999. The period for compliance was varied to 9 months (ie until 18 March 2000)."

14. Miss Elliston and her son moved on to the land in August 2000. These proceedings for an injunction were issued on 23rd March 2001. It is said that the first Miss Elliston knew of them was when she saw notices on the land indicating that there would be a hearing on 4th July 2001 which, as I have said, she attended.
15. A number of arguments were advanced before Eady J. Counsel for the respondent's primary argument was that the validity of the extant enforcement notice upheld on appeal could not now be challenged, and inexorably entitled the Council to an injunction given the repeated breaches of which there was evidence before the court. Counsel referred to section 285 of the Town & Country Planning Act 1990 which with respect it is perhaps unnecessary to read. The judge concluded his judgment with this paragraph:

"41. In the light of the statutory regime to which I have referred, it is difficult to see what answer there could be to Mr Taylor's submissions. Certainly neither Mr Boyle nor his 'McKenzie friend' made any attempt to address the formidable difficulties presented by s.285. The policy of the legislation is that the matters raised by Mr Boyle should be addressed by the planning inquiry route and its specific appeal provisions - not by the courts. These procedures having been exhausted, therefore, it is not open to the court on an application of this kind to determine such issues differently or even to permit them to be re-opened. In those circumstances, it would appear that I have no choice but to treat Mr Boyle's activities and structures as being in breach of planning control. Since all other attempts to enforce have met with failure, the only step open to the Council is to seek an injunction in accordance with s.187B of the Act. It is clearly settled that the Court's powers in these circumstances extend to the grant of mandatory relief: see eg Croydon London Borough Council v Gladden [1994] 1 PLR 30, 35. I will therefore grant an injunction, as the Council asks, although I will hear any submissions over the detailed wording and upon the time when it should be implemented."

16. In fact neither the applicant nor, as I understand it, Miss Elliston attended the hearing when the judge's reserved judgment was handed down on 30th July 2001.
17. A number of points were initially sought to be taken. In a helpful skeleton argument put before me in January (a revised version of which has been put before us for the purposes of this hearing) Mr Willers refined his submissions to three propositions as follows:

"1. The Respondent's decision to take enforcement action constituted a breach of the Appellant's rights to the peaceful enjoyment of his possessions, a right protected by Article 1 of Protocol 1 of the European Convention on Human Rights."

18. That has not been pursued in terms. What is now said is that the Convention rights enjoyed by Miss Elliston not least under Article 8 of the Convention are violated or may have been violated by the order made by the judge.
19. Secondly, it is said that:

"2. The letter dated 27th December, 1989 constituted a binding determination under Section 53 of the Town & Country Planning Act 1971 and that subsequent enforcement action was unlawful (an estoppel argument in all but name)."

20. I have set out the relevant terms of the letter of 27th December 1989. Mr Willers does not distinctly submit that the local authority was thereby estopped from pursuing enforcement action. What he says is that if the learned judge had adopted the right approach to the exercise of his discretion under section 187B he would have taken the terms of this letter into account in assessing the flagrancy of the breach of planning control. I will return in a moment to what Mr Willers submits was indeed the right approach for the judge to take. Thirdly, it is said:

"The Respondent had failed to take enforcement proceedings to secure compliance with the personal occupancy condition within time and that the condition was no longer enforceable."

21. That submission was also refined so as to amount to the proposition that the judge should for his own part have investigated the question whether, by virtue of provisions in the statute (which I need not set out), enforcement proceedings were no longer legally available. That submission, however, has entirely rightly not been pursued.
22. The substance of the application concerns the judge's approach to the exercise of his discretion and the position of Miss Elliston and her young son. Mr Willers founds on a decision of this court in South Bucks District Council v Porter [2002] 1 All ER 425. It is necessary only to read part of paragraph 38 and of paragraph 41 of the judgment given by Simon Brown LJ.

"38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical.

41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gypsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gypsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive relief). Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate."

23. Mr Willers submits (and I understand Mr Taylor to accept it for the purposes of these proceedings) that this approach represents the correct approach for this court to take in relation to applications of this kind brought for injunctions under section 187B in light of the provisions of the Human Rights Act 1998, not least the duty imposed on all public authorities to act consistently with the Convention rights. This court and the local authority are of course public authorities.
24. Porter was decided after Eady J gave judgment, so obviously there can be no criticism of him for not having applied it or considered it. Mr Willers' case is that had the approach in Porter been applied to this application for an injunction it is at lowest arguable that the injunction would have been refused, having regard to Miss Elliston's Convention rights. I have said more than once that she attended the hearing. The affidavit which she handed up to the judge was quite short. Part of it reads as follows (paragraph 2):

"At all material times until notice was received on 25th June 2001 I was unaware of any legal proceedings, my only interest being the horses health and needs. One horse has special dietary requirements and the other is a showing stallion.

3. Due to the huge improvements in my Asthmatic son's health, and our love of the area I made an arrangement with Mr Boyle to stay and manage the land known as Small Acres."

25. She then refers to her having purchased the mobile home in which she lives and also to certain works of improvement that she has undertaken on the land together with Mr Boyle.
26. I now go to paragraph 8, where she says:

"Small Acres is now a settled and secure home for myself and my son.

10. My interest is in the health and wellbeing of my son, the horses and the land on which we reside. I continue to nurture Small Acres land and respect it as a place of natural beauty."

27. Near the very end of the affidavit added to the typescript in manuscript are these words:

"I ask for leave to become party to the proceedings as a co-defendant."

28. There is no doubt that the judge considered this material. He refers to it albeit in passing in paragraph 29 of his judgment. The information we have is that Miss Elliston did no more than hand up the affidavit to the judge. She did not press an application to be joined as a party, though that application was, as I have just said, referred to on the face of the affidavit.
29. It seems to me that that affidavit discloses no case to the effect, for example, that Miss Elliston had no other home to go to or that there would be any special hardship if she were required to leave the property. I conclude that if one looks only at that material and set it against the case for an injunction there is really virtually nothing to weigh in the balance against the application if one applies the Porter approach.
30. It is to be remembered that the case for an injunction here was pressing. The site is in an area of outstanding natural beauty. At the time Miss Elliston commenced occupation in August 2000 there was a valid enforcement notice requiring use of a mobile home to cease save at the hands of Mr and Mrs Dowsett. I have to say there is no suggestion that Miss Elliston made any independent check as regards the planning status of the site.
31. After the judgement had been handed down Miss Elliston applied for a stay of execution. The learned judge's order for an injunction gave her 14 days to remain on the land after any appeal process had been exhausted. She has put in a number of materials that post-date the judge's order. The stay of execution application contained the words: "I will need time to move my mobile home and to find somewhere to live", a form of words which does not to my mind suggest that she would be in a position where she would have nowhere to go. After I adjourned the application on 25th January 2002 a statement was prepared for her signature in which she gave further details of her coming to occupy the property. There was another statement signed in November 2001. I should refer just to paragraph 29 in that document. Miss Elliston said this:

"Should this appeal fail and my planning application fail, I shall regrettably be at the mercy of the Council. Duty it upon the Council to relocate me and my mobile home, to a suitable site. As I do not have anywhere else to place my mobile home or in fact the finances or ability to move the mobile home. The resale value of my mobile home in negligible. I could not sell it to raise nearly enough funds to secure alternative accommodation."

32. The reference there to a planning application is to an application made by Miss Elliston for planning permission (I assume to continue the use of the land for the stationing of her mobile home). That has been refused by the local planning authority. There is to date at any rate no appeal launched. The inference from the documents put in by Miss Elliston is that she has not taken any steps since the learned judge's order to find somewhere else to live.
33. Given that the learned judge did not - because he could not - apply the Porter decision, it seems to me right to consider whether had that decision been applied a different result might have been obtained. I cannot think that it would. I have already indicated the strength of the case for an injunction. The case the other way, resting as it does entirely on Miss Elliston's Convention rights on material before the judge, was insubstantial; and if one looks at the material put in since its substance has not been greatly strengthened. It seems to me it would be wrong to grant permission to appeal on the basis that this injunction might after all have been declined. I should mention the letter of 27 December 1989 and Mr Willers' submission that had that been considered it might have gone to the flagrancy of the injunction, as Simon Brown LJ put it. I cannot believe on the facts of this case that it could have made any difference whatever. Two sets of enforcement proceedings were put on well after that letter had been written. In neither was it suggested that the Council was estopped. It is part of the history but not a significant part of the history.
34. In all these circumstances I would decline permission to appeal.
35. We have been concerned as to Miss Elliston's position and not least that of her young son who unhappily suffers from disabilities, as I have said. However, counsel for the local authority, Mr Taylor, has indicated that his clients would not object to this lady having a further three months at the site within which she may look for somewhere else to go. In those circumstances it does not seem to me that the timing of her departure ought to generate any permission to appeal and I would refuse permission.
36. MR JUSTICE JACKSON: If the decision in South Bucks District Council v Porter (12th October 2001) had been available at the time of the hearing before Eady J, the judge would no doubt have expressed his decision in somewhat different terms. Nevertheless, on the evidence before the court, it seems to me inevitable that the judge would have granted the injunction sought by the Council.
37. I agree that permission to appeal must be refused for the reasons stated by Lord Justice Laws.
38. LORD JUSTICE SCHIEMANN: I also agree that permission should be refused. I have separated in my mind two separate questions. One is whether it was right to grant an injunction, or in any event whether that could be shown to have been wrong; secondly, whether the period of grace before the injunction became operative, namely 14 days, was one which was arguably wrong.
39. So far as the second of those questions is concerned I do see that there was an argument that that period was too short, bearing in mind that the boy in question is eight and at a special school dealing with children with his problems. However that point has been overcome by the offer made on behalf of the local authority that the injunction be extended for three months.
40. I ought to finally say this is not a gypsy case. It may be that in due course Miss Elliston will be in a position where she can apply to the local authority for housing as a homeless person. We do not know enough about her personal circumstances, whether that is the option that she will want to explore. But I agree things being as they are permission should and refused.
(Application refused; no order for costs).