England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE RUTHERFORD)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15th July 2009

Lord Justice Dyson:

1. This is an appeal and a renewed application for permission to appeal from the decision of HHJ Rutherford given on 13 November 2008, by which he granted the claimant an injunction against all except the third and fourth defendants under Section 187(B) of the Town and Country Planning Act 1990. The injunction required them inter alia to cease occupying land OS 1058 Gawbridge, Somerset ("the land") and by 18.00 hours on 5 April 2009 to clear the site of all caravans and mobile homes. The defendants are all members of an extended gypsy family.
2. The land has been in the ownership of the family since about 1999. Over the past ten years four applications by the family for planning permission to use the land for the siting of mobile homes/caravans have been refused and the refusals have on each occasion been upheld on appeal. The claimant has also issued and served two enforcement notices on the family. Appeals against both of these were dismissed. The family had imported large quantities of hardcore onto the land and constructed earth bunds around its perimeter. In February 2003 they moved onto the land. Further work was done to make it suitable for their occupation. They continue to occupy the land to this day with several mobile homes/caravans and a Nissan hut, despite the refusal of planning permission and in defiance of the enforcement notices. As the judge said:

"[The claimant's] position is simple. The defendants have exhausted every avenue to enable them to occupy the land legitimately. They have stayed there in breach of the planning law for a number of years."

3. The claimant said that the only way to ensure that they comply with the law is to obtain an injunction. The defendants resisted the injunction on a number of grounds. Principally they argued that to evict them from the land would infringe their rights of family life under Article 8 of the European Convention on Human Rights, particularly since the claimant had failed to provide sufficient sites to meet the needs of gypsies in South Somerset. They relied on the fact that, at best, a planning application could be made in March 2009 which had a real prospect of success and that the court could not grant an injunction until the outcome of that application was known.

The relevant law

4. Section 187(B) of the 1990 Act provides:

"(1) Where a local planning authority consider it 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 subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."

5. The leading domestic authority on the grant of injunctions to local planning authorities against gypsies in circumstances such as those in the present case is South Bucks District Council v Porter [2003] UKHL 26 [2003] 2 AC 558. The House of Lords emphasised the need to have regard to all the circumstances of the case, including the breach of planning control but also the personal circumstances of the defendants. Lord Bingham endorsed the following five paragraphs in the judgment of Simon Brown LJ in the court below in that case:

"38.  I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B 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. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

39  Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.

40  Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.

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 gipsies 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 gipsies 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. The approach in the Hambleton case [1995] 3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gipsy's private life and home and the retention of his ethnic identity - are at stake.

42  I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."

The Judgment

6. Before the judge conducted what he called the "balancing exercise" he dealt with a number of factual issues. I need to refer to two of them. The first was whether the claimant was in breach of a duty to provide gypsy sites. As to this he said at paragraph 24(b):

"It is the contention of the defendants that the local authority has a duty to follow government guidance and in particular DoE circulars 1/94 and 1/06. The defendant contend that it has failed so to do. The Council vehemently denies this and points out that the circulars are guidance, impose no legal duty, and in any event within its resources it does seek to follow such guidance.

I do not think that it is necessary to determine this dispute, the important point is that everyone acknowledges that there are at present insufficient pitches or sites available in South Somerset. Indeed 1/06 recognises the need for an additional 30 or so pitches and the council hopes to meet this need by 2011."

7. The second question was what the likelihood was of temporary planning permission being granted to the defendants. He noted that permission had been refused thus far on three grounds, namely a) visual impact, b) flood risk, and c) unsustainable location. It was common ground that the question was whether there was a real possibility that planning permission would be granted, and that, if there was such a possibility, this would be a powerful factor to put into the scales against the grant of an injunction. The judge's conclusion on this issue was:

"33. The position that I face is wholly different. Here over a period of 10 years planning applications and appeals have all failed for the three reasons I have already given. 4 different planning inspectors have reached the same conclusions. Nothing has changed. The visual impact and the unsustainability of the site remain exactly the same. The only evidence of flooding before me is the same, namely that this land falls within the Zone 3 flood plain.

34. I note that the most recent planning appeal considered the possibility of temporary permission and rejected this -- see paragraphs 58 and 59 of the inspector's decision at page 95 of the trial bundle. It is important to note that in reaching this decision the inspector had very much in mind the lack of available alternative sites and the expectation that new sites might become available.

35. I cannot see any reason to think that yet another planning application would meet with greater success than those submitted over the past 10 years. On the evidence before me I consider that such an application would have no, let alone any real prospect, of success even on temporary permission."

8. He then proceeded to conduct the balancing exercise, applying the guidance given by Simon Brown LJ to which I have referred. What he said was this:

"38. One has only to read the most recent planning inspector's decision (at pages 79-96) to see how carefully he considered all relevant matters and that he had very much in mind the article 8 issues and the difficulties and problems which the defendants face if forced to leave the land. These issues are very much in my mind also.

39. I also have in mind the position of the children of this extended family who are settled in Tintinhull School and have an excellent attendance record and recognise the possible disruption which may be caused by an injunction and the other matters set out in the witness statement of Debbie Harvey at page 665.

40. I am also mindful of the fact that I should not grant an injunction unless I would be prepared to enforce it, if necessary by committal. I hope that it will not come to this but I would be prepared so to do if it became necessary save in the case of the 3^rd Defendant who is a vulnerable person who would probably not appreciate the meaning of or the significance of any injunction, and the 4^th defendant who is a minor. This is probably academic but I am not prepared to make an injunction against either of these defendants.

41. I am also mindful of the fact that an injunction may mean, at least in the short term, that the defendants' legitimate wish to reside in the open and to carry on their traditional way of life is affected. Bricks and mortar accommodation is not ideal but if this is all that the local authority can offer at this point in time then it will have discharged its duty under the Housing Act 1996 and will not have violated article 8. See Leanne Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925.

42. I take therefore these and all the other considerations I have dealt with in this judgment into account. I have come to the clear conclusion that, after 10 years of unsuccessful planning applications and appeals, the balance does come down in favour of the local authority. It is now entitled to seek the assistance of the court to enforce the planning law and I shall grant an injunction."

The grounds of appeal

9. There are six grounds of appeal. Sir Richard Buxton granted permission to appeal in respect of grounds 2 and 6 only. Application for permission to appeal in respect of grounds 1, 3 and 4 has been renewed. I shall start with the two grounds for which permission has already been granted.
10. Ground 2 is that at paragraph 24(b) of his judgment the judge failed to give any weight to the claimant's long history of failing to allocate land for a gypsy site. Mr Jones relies on the principles of common humanity which he says underpin the government's circulars in relation to the provision of gypsy sites and which he says the claimant had failed to observe. Ground 6 is that the judge erred in expecting the defendants to live in conventional housing (otherwise known as bricks and mortar housing). He should have had in mind the decision in R (Clarke) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 819 upholding the decision of Burton J [2001] EWHC 800 [a planning case] rather than Codona v Mid-Bedfordshire District Council [2004] EWCA Civ 925 [a homeless housing case].

Ground 2

11. Mr Jones relies on the fact that the judge said at paragraph 24(b) of his judgment that it was not necessary to decide whether the claimant was in breach of duty in failing to follow the guidance contained in DoE circulars 1/94 and 1/06. He submits that this shows that the judge failed to have regard to a material consideration when conducting the balancing exercise. He should not have ignored the claimant's failure to follow governmental guidance and its failure to allocate any land for gypsy sites. As Sedley J said in R v Lincolnshire CC EX P Atkinson [1996] 8 Admin Law Rep 529

"…those considerations in the material paragraphs which are not statutory are considerations of common humanity none of which can properly be ignored when dealing with one of them as fundamental human needs the need for shelter with at least a modicum of security."

12. Mr Jones submits that, as a matter of elementary fairness, in deciding whether or not to exercise his discretion to grant an injunction, the judge should have taken into account the fact that the claimant had persistently failed to comply with the circulars altogether. As Mr Burns points out in his skeleton argument on behalf of the claimant, the common humanity argument is, in substance, indistinguishable from the article 8 argument. The judge understood that the defendant's article 8 rights had to be carefully weighed in the balancing exercise. I do not accept that the judge was obliged as a matter of discretion to decide whether the claimant was at fault in failing to comply with the circulars. He was entitled to hold that the important issue was not whether the claimant had been at fault in failing to provide sites and pitches in accordance with the circulars, but was the fact that there were insufficient pitches or sites available in south Somerset. There is nothing in the guidance given by Simon Brown LJ to suggest that the degree of a local authority's culpability must be taken into account in a balancing exercise.
13. On the other hand, in two places at paragraph 38 of his judgment Simon Brown LJ says that the availability of alternative sites must be taken into account by the judge who is deciding whether or not to grant a local planning authority an injunction against gypsies. In my judgment the judge was entitled not to embark on the task on deciding questions of fault. As he recorded in his judgment, the claimant vehemently denied that it was a breach of duty and said that he had sought to follow the guidance contained in the circulars to the extent that it had sufficient resources to enable it to do so. The judge was entitled to take the view that an examination by him of the question whether that was correct would have been as difficult as it was unnecessary. It follows that I would reject the second ground of appeal.

Ground 6

14. Mr Jones is critical of paragraph 41 of the judgment of HHJ Rutherford. He submits that Codona was not the relevant authority and that, if the judge had referred to Clarke, he would or should have reached a different conclusion. Mr Jones relies in particular on paragraph 30 of the judgment of Burton J in Clarke which includes the following:

"Thirdly, in my judgment, in certain appropriate circumstances it can amount to a breach of Articles 8 and 14 to weigh in the balance and hold against a Gypsy applying for planning permission, or indeed resisting eviction from Council or private land, that he or she has refused conventional housing accommodation as being contrary to his or her culture."

15. Codona is a homeless housing decision concerning gypsies. The question there was whether it was open to the housing authority to offer the gypsies temporary bricks and mortar accommodation despite their cultural aversion to it. This court held that the authority had discharged its statutory duty to provide temporary accommodation without violation of Article 8 by offering such accommodation. Auld LJ, with whom Thomas LJ and Holman J agreed, endorsed at paragraph 51 the five relevant considerations that had been identified by Newman J in R (Margaret Price) v Carmarthenshire County Council EWHC 42 (Admin), including whether the gypsies subscribed to the relevant features of the gypsy life in question, such as an aversion to conventional housing. It is material to note that, as Auld LJ pointed out, Newman J's list was by reference to the judgment of Burton J in Clarke. It is true that Clarke was a gypsy case involving an appeal under Section 288 of the 1990 Act against the refusal of planning permission for the use of land as a gypsy site; it was not a homeless housing case. But the article 8 issues raised in that context were, it seems to me, no different in principle from those raised in the homeless housing context considered in Codona. That was clearly the view of this court in Codona itself.
16. As both Clarke and Codona made clear, a relevant consideration to be borne in mind when a local authority makes a decision whose effect will or may compel gypsies to take bricks and mortar accommodation for a period of time, is that the gypsies whose cases are under consideration have a cultural aversion to such accommodation, if indeed that is the case.
17. So too it is a relevant factor for a judge to take into consideration when deciding whether or not to grant an injunction. And that is precisely what the judge did at paragraph 41 of his judgment. He said that an injunction may mean that, at least in a short term the defendants' legitimate wish to reside in the open and to carry on their traditional way of life is affected. He took into account the fact that, to use his words, "bricks and mortar accommodation is not ideal". Mr Jones submits that the judge did not give sufficient weight to the fact that "special consideration should be given to [gypsies'] needs and their different lifestyle […] in arriving at the decisions in particular cases" (see Chapman v United Kingdom (2001) 33 EHRR 18 at paragraph 96). But in my judgment it is clear that, by referring to the defendant's legitimate wish to reside in the open and carry on their traditional way of life, the judge had in mind article 8 and the need to give special consideration to the needs and different lifestyle of gypsies. In my judgment this criticism of the judge has no foundation. It follows that I would reject the sixth ground of appeal.

Renewed application

18. I now turn to the renewed application in relation to grounds 1, 3 and 4. Since these are merely renewed applications I propose to deal with them fairly briefly.
19. Ground 1 criticises paragraph 19 of the judgment where the judge said:

""The decision of the European Court gives valuable guidance as to balancing exercise:

(a) when considering whether a requirement that the individual need his or her home is proportionate to the legitimate aim pursued it is highly relevant whether or not the home was established unlawfully;

(b) If no suitable accommodation is available the interference is more serious. The more suitable the accommodation is the less serious, is the interference."

20. Mr Jones submits that the margin of appreciation accorded by the Strasbourg court to national authorities means that Chapman indicates that there is a minimum level of rights below which a member state may not go, but he submits that this does not assist in the balancing exercise. Like Sir Richard Buxton I confess that I do not understand this criticism. In Chapman the European Court of Human Rights gives valuable guidance as to the factors that should be taken into account by the national authorities in gypsy cases (see for example paragraph 102 and following). This guidance is consistent with that given by Simon Brown LJ which the judge also purported to apply. In my judgment there is no substance in ground 1.
21. Ground 3 is a complaint about the judge's findings at paragraphs 33-35 that a further application for planning permission would have no real prospect of success. In reaching this conclusion the judge relied on the fact that four different Inspectors had reached the same conclusions and nothing had changed in relation to the three grounds on which planning permission had been repeatedly refused: visual impact, unsustainability and risk of flooding. Mr Jones submits that the first Inspector's decisions were made during the currency of circular 1/94 only, the fourth decision being made during the currency of the most recent circular, circular 01/06. There are significant differences between the two circulars, the later one having relaxed the criteria in favour of making provision for gypsy sites. But I do not see how this assists the defendant's case. The fourth decision is detailed and fully reasoned; it is the most recent decision. Even if the three earlier decisions could be distinguished, as Mr Jones suggests, the judge was bound to take the fourth decision as the best evidence of the likely outcome of a further application. Mr Jones submits that the judge also failed to take into account the fact that after the fourth decision in, I think, November 2008 the Secretary of State stated that the claimant must provide 30 pitches for gypsies by 2011. Mr Jones argues that, if the judge had paid proper attention to this new factor, he should have concluded that there was a real prospect that an application for at least temporary planning permission would succeed. I do not agree. The judge expressly considered the possibility of temporary permission (see paragraphs 34 and 35). He referred to paragraphs 58 and 59 of the fourth Inspector's decision, which are in these terms:

"58. A limited period planning permission may be justified when it is expected that the planning circumstances will change at the end of the temporary period. Where there is unmet need but no available alternative sites in an area, and a reasonable expectation that new sites are likely to become available at the end of that period, consideration should be given to granting temporary permission.

59.     However, I consider that the harm which the appeal proposal causes to the area, to the occupiers of the site themselves and to the emergency services is such that the uses are unacceptable, even on a temporary basis. The harm could not be adequately mitigated by conditions."

22. In the light of the judge's acceptance of this part of the Inspector's decision, it is clear that, even if he had expressly referred to the Secretary of State's statement, his conclusion would have been the same. I therefore reject ground 3.
23. The starting point for ground 4 is paragraph 2 of the order made by HHJ McCahill QC on 1 May 2008:

"The parties shall exchange witness statements no later than 5.00 p.m. on Friday 13^th June 2008….The purpose of the evidence including expert evidence shall be to enable the judge to take a broad view of the planning and caravan-site provision background, the planning prospects, the extent and nature of flood risk and the Defendants' needs, personal circumstances, human rights and potential hardship. No evidence shall seek to establish that the enforcement notices are invalid. The evidence shall not include a flood risk assessment in form or in substance."

No evidence of flood risk assessment was indeed adduced by either party. Nevertheless, as we have seen, the judge said at paragraph 33:

"The only evidence of flooding before me is the same, namely that this land falls within the Zone 3 flood plain."

24. Mr Jones submits that it was unfair of the judge to refer to evidence that the land falls within the zone 3 flood plain. In my view, it is clear that the judge must have been referring to the content of paragraphs 18-28 of the fourth Inspector's report, which contains a detailed discussion of the flooding issues. At paragraph 28, the Inspector said this:

"In conclusion, I consider that the site is correctly identified as being within the Zone 3 Flood Plain. At times of flood, which the evidence suggests occurs not infrequently, it is clear to me that access to the site would be difficult and/or dangerous along the road, whether on foot or in a vehicle, especially as ditches and hollows would be difficult to identify. Not only would there be danger to occupiers of the site and their property, but emergency services would be placed at unnecessary risk. I conclude that the development would be a significant risk from flooding and, if some of the mitigation measures were employed, it would increase flood risk elsewhere. The proposal would conflict with LP policy EU5."

25. This was plainly relevant material which the judge was entitled to take into account. The order of HHJ McCahill prevented either party from adducing expert evidence on the point. This order may have operated to the disadvantage of the defendants but they did not seek to appeal it. In these circumstances I do not see how any proper complaint can be made of paragraph 33 of the judgment. I would therefore reject ground 4.
26. As a result, I would refuse the renewed application for permission to appeal and, for the reasons I have given, dismiss this appeal.

Lord Justice Goldring:

27. I agree.

Sir Anthony Clarke, MR:

28. I also agree. So the renewed applications for permission are refused, the appeal is dismissed and it would follow, I think, that the stay of execution granted by consent by Richards LJ will be lifted.

Order: Applications refused; appeal dismissed; stay of execution lifted