England and Wales High Court (Senior Courts Costs Office) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
RULING ON COSTS

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/09/2016

MRS JUSTICE SLADE DBE :

1. Agreement has been reached on the disposal of the Claimant's application dated 20^th June 2016 for a final injunction in this matter and that of the First to the Nineteenth Defendants' dated 1st July 2016 for a variation of discharge of the injunction ordered on an interim basis.
2. The claim by the Claimant, Swale Borough Council, arises from the occupation by the Defendants of their land for residential purposes without planning consent to do so. On the application of the Claimant injunctions have been granted and continued on an interim basis. The first to nineteenth Defendants were joined to the proceedings after the original claim form was issued. The Defendants issued an application to vary or discharge the injunction.
3. The hearing listed for 7^th and 8^th September was to determine Claimant's application for final injunctive relief which would have required the Defendants, now nineteen named defendants and persons unknown as a twentieth defendant, to vacate the land. Also to be determined was the application by the Defendants to vary or discharge the interim injunctions in place.
4. Sensibly the parties have reached agreement for the disposal of their respective applications. In summary the outcome is that by consent there is a final injunction restraining amongst other matters occupation of the land for residential or any other purpose in breach of planning control.
5. The Defendants or some of them had sought to submit a planning application for permission to occupy the land for residential purposes. It was rejected as premature. The previous owners had submitted a similar application which had been rejected by the Council and on appeal to the Inspector. The earliest date on which a fresh application this time made by the Defendants or some of them can be entertained is 28^th October 2016.
6. The parties have agreed that the implementation of the final injunction will be suspended pending the determination of the planning application to be made by the Defendants and if rejected and appealed, the determination of the appeal. A timetable has been agreed.
7. The parties have been unable to reach an agreement on costs and have made written submission on that issue.
8. Miss Lambert for the Council contends that, by agreement, the Council's application for an injunction under section 187B of the Town and Country Planning Act 1990 was successful and that costs should follow that event. It is submitted that it is immaterial that by agreement the Order is suspended.
9. It is said that the Council had no choice but to institute proceedings to enforce proper planning control. Reliance is placed on the Defendants' skeleton argument of 5^th September 2016 which shows that planning permission for residential occupation had been refused to the previous owners and that the Defendants knew they would have to make an application themselves. It is said that they chose to occupy the land in breach of planning regulations.
10. There are several children living in caravans on the land with their relatives. The Claimant recognises that the welfare of children is a relevant consideration to the granting of injunctive relief which would require them to leave but contents that it obtained information about them to place before the court. Further information would have been within the power of the Defendants to provide but they have not done so, relying only on a report of a social worker based on hearsay evidence.
11. Miss Lambert contends that offers made by the Defendants in their skeleton argument of 5^th September 2016 and on the morning of the hearing of 7^th September to consent to an injunction if it were suspended are immaterial to the question of costs. Counsel points out that there was no concession by the Claimant on the application by the Defendants to vary or discharge the injunction.
12. Mr Masters, counsel for the First to the Ninth Defendants contends that the Council applied for an injunction to have immediate effect. This is not the effect of the consent Order. As the order has been amended and suspended it is said that the Defendants won and should have their costs. Counsel contends that it was always a live issue as to whether the Council was entitled to an immediate injunction since they had not carried out and taken into account the necessary enquiries into the welfare and best interests of the children. In his skeleton argument of 5^th September 2016 Mr Masters had referred to South Buckinghamshire District Council v Porter [2003] AC 558 in which at page 580 E-F paragraph 31 Lord Bingham emphasised the need for local authorities when making a section 187B application to take into account the personal circumstances of the Defendants.
13. Mr Masters contended that taking into account the Defendants' personal circumstances and the merits of their prospective planning application the Claimant would not have obtained final injunctive relief.
14. Neither the Claimant's nor the Defendants' application was determined by judgment of the Court but by consent. Having regard to the competing considerations and the exercise of discretion in granting final injunctive relief, this is not a case in which, in my view, the outcome of a hearing on 7^th and 8^th July would have been certain. It was known that there would likely be a fresh planning application on or after 28^th October 2016 and there may well have been a need for further welfare information about the children living in caravans on the land. In paragraph 73(C)(i) of their skeleton argument of 2^nd September 2016 the Claimant sought a final injunction. There was no reference to suspension of such an order. For their part in paragraph 8(iv) of their skeleton argument of 4^th July 2016 the then Defendants made clear that they would give an undertaking to leave the land should their planning application fail after it had been 'fully determined.' As Miss Lambert observed in the Defendants' skeleton argument of 5^th September 2016 and before the court on 7^th September 2016 the Defendants suggested as an alternative the suspension of eviction from the land to allow for the planning application to be heard and determined.
15. Taking into account all these matters, in my judgment neither the Claimants nor the Defendants can be said to have been fully successful in their application. They reached a sensible compromise. The appropriate order in these circumstances is to make no order for costs. This also applies to all costs reserved.