England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th December 2004

Lord Justice Mummery :

This is the judgment of the court.

Introduction

1. Tugendhat J, from whose order of 10 September 2004 this appeal is brought, said that the injunction application before him raised the following question:-

"whether a family of gypsies should be removed from land they have bought and which they occupy in breach of the planning laws and of an existing court order, or whether they should be allowed to stay until the determination of a planning application they have submitted since their unlawful entry on the land."

2. The judge took the latter course. He allowed the defendants, who, in flagrant breach of a court order, had moved their caravans and their families, including young children, on to the land less than two weeks earlier, to remain living there for the time being. They were allowed to use agricultural land for residential purposes, which were initiated in breach of court orders and are in continuing breach of planning controls.
3. The judge did not refuse an injunction outright. On the contrary, he granted a final prohibitory injunction restraining the defendants from using the land for residential purposes, but he then suspended it until the determination of the planning application, which was received only after the defendants had confronted the court and the planning authority with the fait accompli of an unauthorised and unlawful change in land use.
4. Understandably, the local planning authority, which has been entrusted by Parliament with responsibilities for determining planning merits and for enforcing planning controls, was disappointed with the outcome of its application under s187B of the Town and Country Planning Act 1990, as amended. It had made the application on behalf of the public in circumstances in which it considered that it was necessary and expedient in the public interest to prevent the unlawful use of agricultural land in a green belt area and in an area of great landscape value as an unauthorised caravan site. The whole area is subject to strict controls over development proposals, unless necessary to meet the essential needs of agriculture and forestry.
5. The court was not, of course, bound to grant an injunction just because the Council, as the relevant public authority, asked for one in the public interest. It is not in dispute that the court has (a) a discretion under s187B to grant or refuse an injunction "as the court thinks appropriate for the purpose of restraining the breach" and (b) a discretion to suspend or postpone the operation of an injunction as it thinks appropriate.
6. There are certainly circumstances in which it would be appropriate to grant an injunction, but obviously not appropriate to insist on immediate compliance with it. If, for example, time is needed by a defendant to comply with the terms of the injunction and no irremediable harm would be done by postponement, it may be appropriate for the court to suspend the injunction for a reasonable period to enable the defendant to make the necessary practical arrangements for compliance.
7. The issue on the appeal is whether, in the circumstances of the case, this court is entitled to interfere with the judge's exercise of his discretion on the appropriateness of suspending the injunction while the planning application is pending. The judicial discretion as to the appropriate form of order involved striking a balance between various competing interests. There was no serious dispute about the facts. Nor was there any doubt about the relevant legal principles, which have been recently settled by a decision of the House of Lords (South Bucks DC v. Porter [2003] 2 AC 558), followed and applied in two decisions of this court (Davis & Ors v. Tonbridge & Malling BC [2004] EWCA Civ 194 and Coates & Ors v. South Bucks DC [2004] EWCA Civ 1378).
8. The authorities contain an informative debate on the variety of competing interests and discretionary considerations which the court should take into account: the decision of the Council to seek an order; the practical problems of enforcement facing the court if the injunction is breached; the Council's position on the planning merits; the possibility that the Council might come to a different planning judgment; the planning history of the site; the degree of flagrancy of the breach of planning controls; the availability of suitable alternative sites for the defendants; the degree of urgency in the application; the need to act compatibly with the human rights of the defendants guaranteed by article 8 of the European Convention with regard to respect for their home and private life; the personal circumstances of the defendants and the personal hardship likely to be inflicted on them as a result of an injunction enforcing the planning controls by requiring them to move on, including humanitarian considerations of health, safety and education, in particular those adversely affecting any children involved; the length of the defendants' occupation of the land; any delay on the part of the Council in taking action; and any other relevant conduct and circumstances of the parties.
9. The local planning authority, the Mid-Bedfordshire District Council (the Council) has made its position on suspension clear to the court: if its appeal succeeds, it would have no objection to the suspension of the injunction for a reasonable period of, say, a month, to enable the defendant occupiers to look round for another site, to make arrangements to pack up their things and to move off the land. It submits that the judge exercised his discretion incorrectly in the final paragraphs of his judgment, in which he concluded as follows-

"36. The fact is that there are cases in the law, including (but not limited to) cases involving children, where it has been found very hard for the court to identify means of enforcement which are both effective and proportionate or commensurate. I conclude that I cannot treat the breach of the injunction in this case as a separate ground for making the order sought and that I must confine myself to treating it as just another example of flagrant illegality as the Council asks me to treat it. Taking all these considerations into account, I conclude that the object of safeguarding the environment would justify me in granting an injunction in this case, subject to the effect on the private interests of the individual concerned, but that the interests of the safety and stability of the young children on the site override the objective of safeguarding the environment, at least for so long as the planning application has not been considered and determined. What the position will be at that stage is a matter which will have to be considered later.

37. The upshot of it is that I do not consider it to be just and equitable to order the defendants to leave the site before that stage has been reached."

10. By reason of the suspension and, indeed, under the express terms of the judge's order (paragraph 3), the defendants and their children are allowed to go on living on the land. In view of the length of time which it can take to achieve finality on contested planning applications, the period of suspension is likely to extend, or to be further extended, over a considerable length of time. A lengthy suspension will tend to defeat the whole purpose of applying for an injunction to enforce planning controls, to dilute the requirement for obtaining prior planning permission for a change of land use and to secure by unlawful actions a temporary and special exemption from generally applicable planning controls.

The Factual Background

11. Mr Thomas Brown is a member of an extended family of Romany gypsies. Up until recently the family has been living in caravans by the side of the road, in car parks and on wasteland in different parts of Bedfordshire. Mr Brown is married with a two year old son. He operates from a van as a landscape gardener. Earlier this year he bought the land, which is an area of agricultural land adjacent to the M1 near the village of Tingrith, Bedfordshire. The purchase price of £20,000 was raised by clubbing together with other Romany gypsies, including his brother-in- law, Mr Edward Lee, who is married with three young children. He does gardening, painting and decorating odd-job work. They, along with members of their extended family, wish to settle down in the Bedfordshire area, send their children to local schools and become members of the community. Mr Brown, Mr Lee and others who have been in occupation of the land since the end of August 2004 are the defendants in the action and respondents to this appeal.
12. The Council is the local planning authority for the area in which the land is situated. It is within a locale designated as an Area of Great Landscape Value. It is also within the South Bedfordshire Green Belt. Before the start of the s187B proceedings no one was living on the land and no application had been made by Mr Brown or by anyone else for permission to change the use of the land from agricultural purposes or to carry out any type of development on the land.
13. After an inter partes hearing on 10 September 2004 Tugendhat J granted the Council an injunction, but suspended its operation pending the Council's determination of a planning application No 04/0160 received in its Biggleswade office on 31 August 2004. As the Council objects to the suspension of the injunction for that period, it appeals to this court against an order, the effect of which is, it submits, self-defeating. For all practical purposes the injunction is cancelled by its suspension.
14. Unusually, the judge granted permission to appeal against an order, which he had made in the exercise of his discretion. He recognised that he may have been wrong not to grant an immediate injunction against defendants, who had entered the land "in flagrant breach of an injunction restraining them from doing so" and that his decision was " likely to encourage breaches of injunctions in future." As he said in his judgment (paragraph 33), he was "very troubled by the result." So are we.
15. There is no cross appeal against the grant of the injunction, as it was accepted before the judge that it was appropriate to grant an injunction to restrain an admitted breach of planning control. The substantial argument below, as in this court, was whether it was proper for the court to suspend the injunction for the benefit of defendants, who had moved caravans onto the land and began to live there contrary to a court order. If they had obeyed the court order, as they ought to have done, they could not have established what is now called the "Chestnuts Caravan Park" in which they live.

The Proceedings

16. On 27 August 2004 the Council's Head of Planning Services, Mr Christopher Valentine, received details of a complaint that the topsoil of the land was being removed and that hard core had been laid. He went to the site the next morning. He saw for himself a mechanical digger scraping soil from the surface of the land and the hard core which had been laid from the highway carriageway into the site. He pointed out to a labourer, who said he was called Steve and was working for a contractor, and to the driver of the digger there that the works were in breach of planning controls, but they carried on with the works. He was informed by Steve that the site was only going to be used for keeping twelve to sixteen horses.
17. Mr Valentine was concerned about the detrimental effect of the possible development of the land as a caravan site on the character and appearance of the countryside and the failure to satisfy the criteria laid down in its planning policy set out in Policy HO12 for decisions on applications for planning permission for gypsy sites.
18. On 29 August 2004, which was Bank Holiday Sunday, the Council obtained an ex parte injunction over the telephone from the duty judge, Davis J. The injunction restrained the occupiers of the land from causing or permitting entry on to the land of any caravan, mobile home or other form of residential accommodation and from using the land for residential purposes.
19. On the morning of 30 August 2004. Mr Valentine, accompanied by others, including two policemen, returned to the land, where he met Mr Brown. Mr Valentine served the order on him. He also effected service on the defendants, as permitted by the order of Davis J, by placing stakes in the ground and attaching papers in a transparent envelope. At that time there were no caravans or mobile homes on the land. No application was made to the court by the defendants to discharge or vary the injunction.
20. During the afternoon of 31 August Mr Valentine visited the land again. He found that there were now five caravans and attendant vehicles on the land. Mr Brown and members of the extended family were living there. A sixth caravan has since been moved onto the land, even though Mr Brown was told by Mr Valentine that it would be a contravention of the court order. Mr Valentine was informed by Mr Brown that there would eventually be up to twelve caravans on the land housing six resident families, including six young children aged between eighteen months and five years old. Mr Brown also informed Mr Valentine that prior to the service of the order he had installed six sealed septic tanks underground to provide for foul drainage. Photographs were taken of the condition of the land.
21. On 31 August 2004 the Council received at its Biggleswade offices an application dated 28 August 2004 for permission for change of use to "a gypsy residential site." The application was in the name of Mr Brown of "Chestnuts Caravan Park, Steppingley Road, Tingrith" with a postal code MK17 9EW. The application has not yet been determined. Delays by Mr Brown and his solicitor in supplying information requested by the Council meant that it was too late for the Council to prepare a report in time for the November meeting of the Planning Committee, before whom it is now due to come on 21 December 2004.
22. On 1 September Cox J continued the injunction, which remained in force until the order made by Tugendhat J on 10 September.

The Balancing Act

23. In his careful judgment the judge cited the relevant authorities and he considered the evidence in detail, including the fact that the defendants had acted in flagrant breach of planning control and of the injunction by bringing caravans on to the land and living there, which it was accepted counted against the defendants. He said that it could not be disputed that the Council's decision to make the application was "entirely appropriate." As the Council pointed out, the violations were deliberate, no attempt had been made to discuss the matter with the Council and "the breaches of the law had been persistent and serious, albeit only over a few days."
24. On the issue of the justice and proportionality of granting an immediate injunction the judge considered the countervailing factors, which, applying the principles laid down in Porter, he thought were against the grant of an immediate injunction: although the Council had indicated that the permission was unlikely to be granted, the judge placed little weight on a view which he thought had been expressed without detailed consideration, and there was a possibility that the Council would make a different planning decision, the time for making a decision expiring on 27 October 2004; although the judge found that there would be some environmental damage caused by the breach of planning control, it would not be serious and the injunction would not remove it; there were no alternative local official or private sites to which the defendants could move; and there would be hardship if the defendants were required to move, as that would affect the safety and stability of the defendants small children. He thought that an injunction would not bring the defendant's unlawful activities to an end.

Conclusion

25. In our judgment, the judge's decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the court in upholding the important principle that the orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the Council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to this court.
26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.
27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour a suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control.
28. We would add that the defendants would have attracted more sympathy from the court for their plight, if they had embarked on their plans to purchase and establish a caravan site, so that they could integrate with the community, by taking steps to obtain a site which had a reasonable prospects of being granted planning permission, by following the proper procedures for obtaining the necessary permission and by awaiting the outcome of the planning application, instead of taking the law into their own hands, flouting orders of the court and asking the court to suspend the injunction in order to relieve them of the consequences of their unlawful conduct.

Result

29. The appeal is allowed and the order in paragraph 3 of the order is discharged. It is appropriate to suspend the injunction for four weeks to give the defendants a reasonable time in which to make arrangements to move their caravans and vehicles from the land.

ORDER: Appeal allowed with cost of the appeal and of the court below to be subject to detailed assessment. Order as per counsel's agreed minute.

(Order does not form part of approved Judgment)