England and Wales High Court (Queen's Bench Division) Decisions

Mid-Sussex District Council v. William Charles Boyle [2001] EWHC QB 382 (20th July, 2001)

Case No: HQ 0101289

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 20 July 2001

B e f o r e :

THE HONOURABLE MR JUSTICE EADY

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Mr Reuben Taylor (instructed by Mid-Sussex District Council)

The Defendant appeared in person

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I direct pursuant to CPR Part 39 P.D. 6.1. that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

Copies of this judgment are available on the provision of a 3.5 floppy disc to the clerk to The Hon Mr Justice Eady.

JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN

Mr Justice Eady:  

1. There is before the court an application by the Mid-Sussex District Council for an injunction against the Defendant, Mr William Boyle, pursuant to s.187B of the Town and Country Planning Act 1990. It is provided that a local authority may apply to the court for an injunction where it considers it necessary or expedient for any actual or apprehended breach of planning control to be so restrained. The present claim relates to the use of land known as Small Acres in Clappers Lane, Fulking, West Sussex.
2. The Council seeks an order:

1. to restrain the Defendant from using, or causing or permitting the use of the land in question for the stationing of vehicles, mobile homes or caravans;
2. to require the Defendant to remove all vehicles, mobile homes or caravans from the land within 14 days of the order;
3. to require the Defendant to remove the structures at the locations marked 9 and 10 on the attached plan from the land within 14 days of the order.
3. A detailed history of the steps taken by the Council in relation to these matters is set out in the witness statement dated 21 March 2001 from Mr Adrian Palmer, employed by the Council as a planning investigations officer. For present purposes, that history may be summarised as follows.
4. The land in question falls within an area designated as an Area of Outstanding Natural Beauty, in accordance with the terms of the National Parks and Access to the Countryside Act 1949. It is in the ownership of Mr Boyle, as emerges from the Land Registry entry put in evidence (Title No. WSX187103).
5. A number of temporary planning permissions were granted for the siting of a single caravan on the land between the years 1952 and 1980. It would appear from an unsworn affirmation of Mr R Dowsett that in 1977 a Mr and Mrs M E Dowsett bought the land. A planning permission was given under reference FK/4/80 on 22 July 1980 for the siting of a residential caravan which was "temporary" since it was to be discontinued after 31 March 1985. Moreover, it was made clear in Condition 2 of the planning permission that it should enure for the benefit of Mr and Mrs M E Dowsett only and not for the benefit of the land.
6. In 1981 Mrs Dowsett applied for "permanent" planning permission for the siting of the caravan on the land. Planning permission was granted on 20 October 1981, confirming that the caravan could remain on site subject to a condition that the use be discontinued after 31 March 1985. Once again, it was confirmed that the grant was "personal" to the applicants. There was an appeal to the Secretary of State against the imposition of these conditions and an inspector was appointed to determine the matter. The appeal was rejected in a decision of 26 May 1982.
7. In 1983 an application was made for planning permission for the purpose of erecting a dwelling and a garage, to replace the caravan. On 22 December 1983, this application was refused by the Council, whereupon Mr and Mrs Dowsett again appealed to the Secretary of State who appointed an inspector. This appeal was refused in a decision letter dated 21 September 1984.
8. A further application was submitted for planning permission for "renewal of permission for mobile home", which was turned down by the Council on 15 March 1985. This time there was no appeal against the refusal.
9. On 16 April 1985 an Enforcement Notice was issued, alleging that there had been a breach of planning control by reason of non-compliance with Condition 1 of the planning permission dated 20 October 1981. This was on the basis that the use of the land for stationing the mobile home upon it had not been discontinued on 31 March 1985.
10. 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 29 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 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".
11. Mr Dowsett made a further application for planning permission in 1986. This was for outline planning permission for one dwelling to replace the mobile home and adjoining outbuildings. This was refused by the Council on 21 November 1986.
12. In March 1988, the Council received an application for the grant of an Established Use Certificate for use of the land as a caravan site. This was from a Mr Watson who described himself as "purchaser of the freehold". The Certificate was refused on 19 July 1988. Mr Palmer states in his evidence that he believes that the ownership of the land was transferred, that same year, to a Mr C Mears.
13. By 1991, it appears that a further caravan had arrived and was stationed on the land. Although the Council decided to issue an Enforcement Notice to require its removal, this was not pursued because the matter was resolved through negotiations.
14. Steps were taken on 6 December 1994 to issue an Enforcement Notice, served on Mr Mears, for the purpose of ensuring that only one mobile home remained on the land - in accordance with the planning permission granted by the Secretary of State in 1986. The notice was complied with and, indeed, all other caravans were removed from the land at this point.
15. Mr Palmer states his belief that in or about November 1995 the ownership of the land passed to Mrs Rebecca Mears, being the mother of the present Defendant.
16. In February 1997, the Council resolved to take enforcement action against unlawful development on the land, and two Enforcement Notices dated 17 February of that year were issued and served. The first sought to enforce against unauthorised operational development on the land, and it required unauthorised structures to be removed. The second alleged unlawful material change of use and required the removal of all mobile homes and caravans stationed on the land (other than one of each - so as to protect the use permitted by the Secretary of State in 1986). Mrs Rebecca Mears appealed to the Secretary of State against both Enforcement Notices and an inspector was appointed. In his decision letter of 28 January 1998 the appeals were dismissed. The first notice, relating to unauthorised structures, was upheld without amendment. The second notice (stationing of mobile homes and caravans) was amended so as to require "discontinuance of the use of land for the storage of mobile homes except for one mobile home and one caravan in the positions marked 8 and 10 on Plan 2 attached to the notice". There was a period of compliance for each notice of one month.
17. Mr Boyle then sought leave to appeal to the High Court against the decision of the Inspector. Mr Nigel Macleod Q.C., sitting as a Deputy Judge, dismissed the application on 26 January 1999. Mr Boyle wrote to the Council on 31 August of that year indicating that he was pursuing the matter further in the European Court of Human Rights.
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 association 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 (i.e. until 18 March 2000).
20. The position at this stage was, therefore, as follows. The caravan and mobile home (at locations 8 and 10 of the plan attached to the February 1997 Enforcement Notice) were permitted to remain on the land in the occupation of persons other than Mr and Mrs M E Dowsett until 18 March 2000. Thereafter, an occupation of a mobile home and/or caravan on the land could only be carried out by Mr and Mrs Dowsett - pursuant to the permission granted by the Secretary of State in August 1986.
21. Within a short time of the expiry of this period, at 8.15 a.m. on 20 March 2000, Mr Palmer went in the course of his duties to Small Acres and was able to see that a number of caravans and vehicles were on the site. (He also said in evidence that he was unable to gain access on this and other occasions, although the Defendant told me that there was always someone in attendance and access would have been given if requested.) Mr Palmer's evidence was that he could see, on this occasion, four caravans, an open-back truck, a horse transporter, a Land Rover, a white estate car, a black lorry, a gypsy lorry covered with tarpaulin, a corrugated iron structure, a green open sided structure and various other items. Photographs were taken which were produced in evidence.
22. Mr Palmer said that the mobile home which had featured at position 10 on the February 1997 plan had been replaced by the black lorry. Furthermore, so far as position 8 on that plan was concerned, it was no longer occupied by a caravan. He has stated that the use of the land for storing the other vehicles, caravans or mobile homes was not lawful and was being carried on without planning permission.
23. Mr Palmer had a conversation with Mr Boyle later on the same day and he was permitted to take two further photographs. One of them shows two of the caravans stored on the land, together with the Land Rover and horse transporter. The other showed a black lorry with "Brighton Scouts" written on the side. He described also a green corrugated open-sided structure, a wooden structure, and small corrugated iron one. The corrugated structures were apparently occupied by small carts. He noticed a small touring caravan beside the black lorry. He was told by the Defendant on this occasion the black lorry was itself used as accommodation by a young woman. In the light of what he had seen, Mr Palmer prepared a plan showing the up to date position of the relevant mobile homes, vehicles and structures.
24. In the meantime, a further appeal had apparently been lodged with the European Court of Human Rights, and it appears from a letter of 30 November 1999 that it bears the reference 52603/99.
25. Mr Palmer revisited the site on 23 October 2000 (again claiming that he was unable to gain access), and photographs were taken from a neighbouring garden. A sketch plan was prepared showing the position as at that date, and his evidence was to the effect that only four items were lawfully on the land (identified as 11-14 on the plan). He said that the remaining items were there in breach of planning control.
26. Subsequent visits by Mr Palmer took place. First, on 19 December 2000 he recorded that the black lorry noted on 23 October had gone; on the other hand, a new mobile home was present on the site (which he referred to as having Christmas decorations on the window). A further visit on 12 January 2001 led him to the conclusion that there was no change over the intervening three weeks. A letter of 15 January 2001 was sent to the Defendant requiring the mobile home to be removed by 31 January of this year. Accordingly, on that date, Mr Palmer again visited the site and saw that the mobile home was still there. He noted that there had been little change since his visit on 12 January.
27. On 5 March 2001 the Defendant was warned, as were his legal representatives, that the Council would seek an injunction if the items in question were not removed in 7 days. A site visit of 13 March 2001 revealed that none had been removed.
28. In the light of this history, the Council contends that breaches of planning control have continued for a number of years without abatement. It is suggested that the Defendant has been given ample opportunity to make alternative arrangements. The Council is concerned that, unless an injunction is granted, these unlawful activities will continue and that harm will be caused to the Area of Outstanding Natural Beauty and to the amenities of nearby residents.
29. The Defendant placed before the court a skeleton argument setting out his reasons for resisting the relief now sought, and those arguments were developed on his behalf by a retired planning consultant in the course of the hearing before me. He also provided evidence from Miss Lucia Elliston, who resides at the site with her son (aged 8). She identifies the adverse consequences for herself and her son and also for a sick horse which she kept at the premises.
30. The Defendant contends that the Enforcement Notice served upon him was unlawful, in the sense that the land in question had been used as a caravan site since prior to the "appointed day" for the purposes of the legislation, namely 1 July 1948. He further contends that the buildings which the Council requires to be moved had been lawfully erected and the permitted development rights afforded by the General Development Order. The Defendant contends, and it appears that he may well be correct, that his land has been used to a greater or lesser extent for the stationing of caravans since approximately 1914. Moreover, the Council's own public rating records indicate that the site had been known as a "caravan site" since 1935.
31. The Defendant further argues that there would, in effect, be an infringement of the European Convention on Human Rights in so far as it is sought to interrupt the peaceful enjoyment of his home and possessions.
32. Moreover, he does not accept that the designation of the surrounding area as one of outstanding natural beauty in the Structure Plan would provide any basis for extinguishing a use recognised since before 1 July 1948. The use is, he says, quite simply immune from enforcement action. Likewise, the structures on the site (9 and 10 on the relevant plan) are said to be immune from any enforcement since they had stood for over 30 years.
33. The Defendant goes so far as to suggest that the Council's conduct, in attempting to enforce by the means they have adopted, constitutes an abuse of power. Apart from the rating records, Mr Boyle points out that reference was made in a letter from the Council dated 23 February 1989 to a previous owner, Mr Huet, having had caravans on the land as long ago as 1934. There is also a reference in a report by the planning committee in 1965 to the "caravan site" as still being in existence. There are also statements, declarations and letters from various local residents confirming the long term use of the site for placement of caravans.
34. It has also been suggested by Mr Boyle, and also by Miss Elliston, that the course of action which the Council has adopted was prompted and continued by reason of spite or vengeance on the part of someone having the necessary influence with the local authority, who had attempted to purchase the land from Mr Boyle without success.
35. The Council was represented before me by Mr Reuben Taylor, who submitted that the Defendant's arguments are all fundamentally flawed. He referred to s.285 of the Town and Country Planning Act 1990 which, so far as material, is in the following terms:

"(1) The validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought".

36. Mr Taylor submits that the Defendant's grounds not only could have formed the basis of an appeal under s.174 of the Act but in fact were relied upon him for that purpose. He relied upon the same arguments for the purposes of appealing against all three of the Enforcement Notices served upon him and indeed before the learned Deputy Judge on his appeal brought under s.289 of the Act. That emerges quite clearly, for example, from the terms of Mr Macleod's judgment of 26 January 1999, of which a copy was exhibited to Mr Palmer's witness statement.
37. The relevant provisions of s.174 are as follows:

"(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him.

(2) An appeal may be brought on any of the following grounds -

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; .....

(b) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters ..... "

38. Mr Taylor's primary submission is that, since the validity of the Enforcement Notices cannot be questioned following the final determination of any appeal from them, Mr Boyle is incontrovertibly in breach of planning control and the Enforcement Notices must therefore be treated as valid and lawful. Moreover, any interference with privacy will have to be regarded as lawful, since it is incidental to the enforcement procedure laid down by Parliament for breaches of planning control. Any reliance placed on Article 8(2) of the European Convention on Human Rights is not to be treated as a distinct issue, and the critical question is the extent to which the Council's service of the relevant notices and attempts at enforcement can be the subject of challenge for illegality. My attention was drawn to the recent decisions of the European Court of Human Rights in Buckley v. United Kingdom, 25 September 1996, and Chapman v. United Kingdom, 18 January 2001 (application no. 27238/95). In Chapman at paragraph 92 the Court made these important observations:

"The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the Court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because Planning Inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the Court weigh the arguments. Hence, as the Court observed in Buckley (loc, cit., p. 1292, § 75 in fine), 'in so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the, national authorities in principle enjoy a wide margin of appreciation', although it remains open to the Court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8 (see the Buckley judgment, cited above, p. 1292-3, §§ 76-77)."

39. Mr Taylor further submitted that the Council is required by s. 172(1) of the 1990 Act to have regard to the relevant Development Plan which, in this case, designates the Sussex Downs as an Area of Outstanding Natural Beauty. It was thus a factor to which the Council was not only entitled but positively bound to give weight, when considering whether to issue an Enforcement Notice.
40. A possible way of circumventing the constraints of s.285 would be to establish that the Enforcement Notice was a nullity without questioning its 'validity'. Fine distinctions have been drawn between the two concepts. My attention was drawn in this context to the decisions of the Court of Appeal in South Hams District Council v. Halsey [1996] J.P.L. 761 and to Miller-Mead v. Minister of Housing and Local Government [1963] 2 Q.B. 196, 226 (Upjohn L.J.). Mr Taylor argued that such a notice will only be regarded as a nullity if there is a defect on the face of the notice itself or if there has been procedural impropriety. Thus, arguments as to the legality of the use of the land are not admissible to support an allegation of nullity but are to be raised only by way of a s.174 appeal. There is nothing here that would amount to a defect on the face or to procedural impropriety.
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. Those 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 e.g. Croydon London Borough Council v. Gladden [1994] 1 P.L.R. 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.