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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Mayor and Burgesses of the Royal Borough of Kingston Upon Thames v Casey & Ors [2025] EWHC 1466 (KB) (16 June 2025)
URL: http://www.bailii.org/ew/cases/EWHC/KB/2025/1466.html
Cite as: [2025] EWHC 1466 (KB)

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Neutral Citation Number: [2025] EWHC 1466 (KB)
Case No: KB-2024-002247

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
In the matter of section 222 Local Government Act 1972 and section 187B Town and Country Planning Act 1990

Royal Courts of Justice
Strand, London, WC2A 2LL
16/06/2025

B e f o r e :

KAREN RIDGE SITTING AS A DEPUTY HIGH COURT JUDGE
____________________

Between:
THE MAYOR AND BURGESSES OF THE ROYAL BOROUGH OF KINGSTON UPON THAMES
Claimant
- and –

(1) MICHAEL CASEY
(2) BRIDGET CASEY
(3) SIMON DOHERTY
(4) KATHLEEN BERNADETTE KATRINA DOHERTY
(5) PERSONS UNKNOWN, BEING THOSE PERSONS CAUSING OR PERMITTING WORKS TO BE UNDERTAKEN, OR WASTE OR OTHER MATERIAL TO DEPOSITED ON THE LAND, AND/OR BRINGING ONTO OR OCCUPYING CARAVANS OR MOBILE HOMES ON THE LAND OR INTENDING TO DO SO, OTHER THAN IN ACCORDANCE WITH A VALID GRANT OF PLANNING PERMISSION
(6) THOMAS JUDE DOHERTY
(7) THOMAS CASEY
(8) MICHAEL CASEY JUNIOR
Defendants

____________________

Charles Streeton (instructed by South London Legal Partnership) for the Claimant

Hearing date: 7 May 2025

____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on Monday 16th June 2025 by circulation to parties or their representatives by e-mail and by release to the National Archives

    Deputy High Court Judge Karen Ridge:

  1. This is the Claimant's application under section 187B of the Town and Country Planning Act 1990 ("the Act") for an injunction preventing unauthorised development at The Tree Birches, Kenwood, Green Lane, Chessington, ("the Land").  The amended claim was issued on 5 July 2024 against seven named individuals, Defendants 1 to 4 ("D1- D4") and Defendants 6 to 8 ("D6-D8"), and also against persons unknown.  The seven named individuals are members of the Gypsy and Travelling community who have sited caravans on the Land.
  2. An ex parte injunction was first granted by Mrs. Justice May on 24 July 2024.   That was followed by an inter partes hearing on the following day before Deputy High Court Judge Andrew Kinnier KC when undertakings were given by D1-D4, and an injunction was made against persons unknown.  At that point D6-D8 were joined as parties
  3. The matter was then listed for a return date hearing before HHJ Pearce sitting as a Judge of the High Court on the 11 October 2024.  At that hearing there were a number of applications made by the Claimants: to amend the form of injunctive relief against all Defendants, to restrain further development and the introduction of additional caravans, that is additional to those already present on the land.  There was a further application by the Claimant for a mandatory order against D1-D4 requiring the removal of caravans other than those shown on the plan attached to the injunction order.  Other applications concerned the question of cross-examination of the Claimant and amendment to the names of the Defendants. Those applications were largely dealt with in agreed directions.
  4. The Defendants also made applications which HHJ Pearce dealt with; those included a request to adjourn the substantive element of the hearing and to remove D6-D8 as Defendants.  That last application was refused, and the claim has continued against all seven Defendants named on the amended claim.
  5. In resolving some of the ancillary issues which had arisen as a result of the various applications, HHJ Pearce examined the history of the site from 2003 leading up to the events which gave rise to the issue of these proceedings.  That examination is at paragraphs 23 onwards in the transcript of the Judgment which HHJ Pearce gave on the 18 October 2024.  I shall return to the history of the site in due course.
  6. In his Judgment HHJ Pearce spent some time considering the particular personal circumstances of the named Defendants and the circumstances which gave rise to a breach of planning control and, applying the principles in American Cyanamid, he came to the conclusion that it was appropriate to grant the interim relief sought in the continuation of the injunction. That injunction was made against the 7 named Defendants and against persons unknown.
  7. The matter was to be listed for a final hearing for three days on the question of final injunctive relief.  Since the Judgment of Judge Pearce matters have progressed and there is now agreement between the seven named Defendants and the Claimant as to an appropriate disposal of this case as it concerns themselves.
  8. That agreement is set out in the draft consent order which I have seen.  The consent order of course still includes reference to persons unknown as the fifth Defendants and it is the question of the sanction of a prohibitory injunction against persons unknown which remains a live issue for the Court.
  9. For some reason, the draft consent order was sealed by the court on 2 May 2025 prior to the hearing and in error.  The question of final injunctive relief against persons unknown remains before the Court.  All other matters have been resolved on the terms set out in the proposed order and given the past history of the case and the material before the Court, I am satisfied that the consent order should be approved in the terms proposed by the parties as it relates to the named Defendants.
  10. That order, at clause 1, directs all named Defendants and unknown persons not to carry on development on the land at The Tree Birches as depicted on the two red line plans attached to the Order.  It further sets out a series of prohibitions in terms of what must not be done and that includes bringing any additional caravans on the land other than the 4 already sited, allowing any further residential occupation other than by the 10 named individuals already in occupation on the land.
  11. Clause 2 of the order contains a mandatory order against D1-D4.  That requires certain actions to be taken in terms of removing hard standing and other unauthorised structures from the land, and it requires restoration of certain areas.  The third clause contains provision as to payment of the Claimant's costs by the first four Defendants.  All matters are therefore settled between the Claimant and the named Defendants, being D1-D4 and D6-D8.
  12. The only matter remaining is the final prohibitory injunction against persons unknown reflected in clause 1 of the proposed order.  That injunction is requested so as to restrain future breaches of planning control by the stationing of additional caravans on the land or by other unauthorised operational development.
  13. Legal Principles

  14. Section 187B (1) of the 1990 Act empowers a local planning authority to apply for an injunction to restrain an actual or apprehended breach of control where they consider it necessary or expedient to do so. Section 187B (2) then affords the court a discretion to grant such an injunction as it thinks appropriate for the purpose of restraining the breach.
  15. The leading case of South Buckinghamshire v Porter (No.1) [2003] 2 AC 558 sets out the principles to be applied when considering injunctions under s187B.  Those principles are well known and are set out comprehensively in the judgment of HHJ Pearce, so I do not recite them here.
  16. The Court's power to grant an injunction against persons unknown has recently been considered by the Supreme Court in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 (dismissing an appeal against London Borough of Barking & Dagenham v Persons Unknown [2022] EWCA Civ 13). The Supreme Court endorsed the conclusion that the Court had power to grant a final injunction against persons unknown and not party to the proceedings, so called "newcomers", subject to important principles set out at paragraph 167 of the Judgment.  Those principles can be summarised as follows:
  17. Final injunctions against newcomers are only likely to be justified as a novel exercise of an equitable discretionary power if certain criteria are satisfied, as follows:
    • There must be a compelling need for the enforcement of planning control in the locality which has been sufficiently demonstrated by the evidence and on the facts of the case. Further, the Court should be satisfied that the compelling need is not adequately met by any other measures available to the Claimant.
    • Within the proposed injunction there should be sufficient procedural protection for the rights of newcomers which would overcome the strong prima facie objection of subjecting newcomers to a without notice injunction made on a final basis,
    • The injunction should be constrained in terms of both territorial and temporal limits, such that it does not persist longer or beyond the limits required by the compelling circumstances demonstrated.
  18. I turn now to apply those principles to the facts of this case. The site has quite a lengthy history of unauthorised use and development by the Gypsy and Traveller community. That history is set out in paragraphs 23 to 31 of the judgment of HHJ Pearce. By order dated 30 April 2003 D1 and D3 in this action were prohibited from bringing onto the land further caravans and hardcore. Those 2003 proceedings culminated in a consent order dated 24 October 2005 with the defendants in that action promising not to breach the previous Order and not to undertake any activities in breach of planning control.
  19. In 2012 a temporary planning permission was granted for three years, allowing two pitches on the site. Following the expiration of the temporary permission the Claimant threatened the issue of a Breach of Control Notice to regularise matters on the site and prevent occupation of the land. Following a successful appeal the previous permission granted on a temporary basis was then granted planning permission on a permanent basis, subject to conditions, one of which required a site development scheme. It appears that a site development scheme was approved but never implemented and that failure led to the issue of Breach of Condition Notice in 2019.
  20. The Claimant then says that there was a series of repeated breaches of planning control with increasing amounts of hardcore brought on to the site. Temporary Stop Notices were served by the Claimant in May 2020 and again, in April 2022. The Claimant continued discussions with the site occupants and in November 2023 it was felt necessary to serve section 16 Notices to seek to find out the identity of the various occupants at that time. In January 2024 the Claimant became aware that large quantities of hardcore had been brought on to the site, with some levelling having taken place and retaining walls erected. That breach of planning control was described by the Claimant's advocate as very significant or 'monumental'.
  21. In April 2024 the Claimant sought to prevent further unauthorised development, communicating with a spokesperson on behalf of some of the Defendants and continuing its investigations into the identities of the site occupants. An application for planning permission for a dayroom and mobile home on each pitch was submitted on 7 May 2024. On or around 15 May 2024 the Claimant's Officers visited the site and recorded development on the site. The photographic record indicated a largescale importation of hardcore material on the site and the construction of substantial retaining walls to assist retention of the unlawful material and achieve levelling of the site. All of those works are in direct contravention of planning control.
  22. The witness evidence of the Council's Officer, Mr Toby Feltham, explains the unsuccessful efforts made to encourage the Environment Agency to exercise its statutory powers to address apparent extensive and unrestrained contraventions of the waste controls set out in the Environmental Protection Act 1990. The Council instructed experts to conduct a grounds investigation report into the unauthorised deposit of waste on the site which documents a large amount of uncontrolled waste deposition which was recommended for removal due to the potential risk to human health.
  23. The Council's Neighbourhood and Communities Manager, Mr Richard Dean, attests to two further mobile homes being brought onto the site on or around 23 July 2024 in breach of the permanent planning permission; the original injunction order dated 30 April 2003, the consent Order of 24 October 2005. Proceedings had been issued on 5 July 2024, and these two additional caravans were brought onto the site after issue of this set of proceedings and prior to the first hearing.
  24. Given the history of the site and recent events, it is clear that there have been significant and persistent breaches of planning control. Some of those breaches have occurred despite the injunctive measures already taken or in train. Whilst the site is privately owned, it is also apparent that the Claimant has experienced difficulties in identifying site occupants and the persons who have been responsible for the breaches which have occurred. D6-D8 all deny that they are the ones causing the breaches. There is clearly a compelling need on the facts of this case for the enforcement of planning control in this locality. It is equally apparent that the Claimant has attempted the use of other measures, such as the service of various notices to control matters but that such notices have not been effective.
  25. The proposed injunction order contains sufficient procedural protection for the rights of newcomers bound by the injunction. The order against newcomers is prohibitory in nature and makes provision for anyone affected by the Order to apply to the Court to vary or discharge it upon 48 hours' notice. On behalf of the Claimant, Mr Streeton explained the steps which the Claimant had taken in bringing the proceedings and interim injunctions to the attention of persons likely to be affected. That included placing notices on the site. Mr Streeton confirmed that the same steps would be taken in relation to any final injunction Order. The Court can be satisfied that the Claimant will take all reasonable steps necessary to give affected persons notice of the Order.
  26. The proposed final injunction Order is limited to the Land contained in the red line plan. It would therefore be appropriately constrained in terms of territorial limits. At the hearing I asked Mr Streeton about temporal limitations, and he explained that the primary position of the Claimant is to seek an unlimited injunction, with the secondary position being a request for the injunction to be limited to five years. Whilst I accept that an injunction unlimited in time is acceptable against the named Defendants, I consider that against newcomers, there should be a 10-year time limit in terms of the injunction. I have concluded that a 10-year period is appropriate given the lengthy history of planning breaches, the extent of those breaches and the likelihood of continued breaches. A period limited to 10 years will ensure that the injunction against newcomers does not outlast the compelling circumstances which exist in this case.
  27. I have already discussed with Mr Streeton the approach to the sealed consent Order. It is appropriate to revoke that Order and remake it to reflect the terms of this Judgment and I should be grateful to receive a draft Order for my approval.

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