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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2013

Mr Justice Mackay:

1. Mrs Marie Helene Reynolds ("the appellant") has leave to appeal an order of HHJ Thompson sitting at the Ipswich County Court on 17 October 2012. By that decision she was made the subject of an extensive injunction pursuant to Section 187B of the Town and Country Planning Act 1990. That order included mandatory provisions requiring her and the other defendants to carry out specified work to remove the causes of breaches of planning control. It was made in Part 8 proceedings issued by the respondents in relation to land in Suffolk in respect of which there were long standing and very significant breaches of planning control.
2. So far as the appellant is concerned (no other defendant to the action has appealed the order) the relevant land is Bardwell Hall Farm with its associated fields, and an area called Great Carr Wood (previously part of Bardwell Hall Farm but carved out of it and now a separate property). It was not disputed at any stage, certainly not by the appellant, that on the relevant properties there was a long history of breaches in the form of the deposit of vehicles, machinery, rubbish and other like materials on the land.
3. Between 1997 and 2007 there had been five attempts by the respondents (I need not distinguish between them for the purposes of this judgment) to alleviate the problems by the service of enforcement notices. There had been little or no effective response to any of these attempts. The appellant has, she says, always supported the respondents' attempts to clear the land, and that remains her position today, but she says the judge erred in including her within the grip of the order at all.
4. As to the ownership of the land the picture is complicated. So far as Bardwell Hall Farm and its associated fields are concerned the position as found by the judge is that this had formerly been owned by a company described as a company of the family of the second defendant Robert Reynolds, then married to the appellant. On 21 December 1987 Mr Reynolds through a company controlled by him caused a lease to be granted to the appellant and the third defendant. On 25 February 1991 the appellant transferred half her share of this joint tenancy to her husband the second defendant to be held as tenants in common. On the following day the appellant and Edith Reynolds, mother of the second defendant, purchased the freehold of Bardwell Hall Farm, which then still included Great Carr Wood. They held the property as tenants in common in equal shares until the death of Edith Reynolds on 3 March 2002. The appellant is currently the legal owner of this property.
5. On 2 October 2001 the appellant and the second defendant divorced on the grounds of his unreasonable behaviour. It is her case that she was in fear of her ex-husband and was given a community alarm by way of protection. On 17 November 2000 she obtained an order forbidding him from approaching within 500 yards of her dwelling and making threats of violence against her. The judge who granted the order was satisfied that violence had been used or threatened by him and consequently the order was backed with a power of arrest. On 17 January 2002 a further court order was made prohibiting the second defendant from using or threatening violence against the appellant or encouraging another to do the same, intimidating harassing or pestering the appellant and approaching within twenty five yards of her home.
6. Following the death of her mother in law the appellant has not been involved in the administration of her estate nor informed about it but believes the second defendant is executor. No visible progress has been made with its administration,
7. So far as Great Carr Wood is concerned this was carved out of the Bardwell Hall Farm land and sold by the appellant and her mother in law to Bartizan Limited, as part of a deal involving the second defendant and which was owned and controlled by the second defendant. The appellant was given an option to purchase the land. The freehold then apparently passed to the fifth defendant, again a company of which the second defendant is sole director and shareholder. The appellant's position at the hearing is that she had no connection with Great Carr Wood except for the option to purchase which expires on 13 December 2016. The respondent argues that the freehold would be subject to the terms of the 1987 lease of Bardwell Hall Farm, of which it was then part, in which the appellant retains a joint tenancy in law with the third defendant and possibly only a ¼ share equitable interest. This is an issue to which I will have to return later.
8. The appellant does not live on use or derive rent from or pay rent on either of these properties and has not done so at any relevant time. It is not said that she is personally responsible for bringing the offending materials onto the land. The third defendant is a farmer and manages or farms the Bardwell Hall Farm land and its associated fields. The fourth defendant is also in occupation of that land and is described as an informal tenant of about one hectare. The judge heard evidence that both these defendants had brought offending material on to the land.

Legal Framework

9. Section 187B of the Town and Country Planning Act 1990 provides as follows

Injunction Restraining Breaches of Planning Control

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

10. It is common ground that the authoritative authority on the exercise of this power is the decision of the House of Lords in South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 WLR 1547. The judge was fully aware of this authority and set out at length citations from it. He cited the judgment of Simon Brown LJ in the Court of Appeal as to the approach to be adopted to the application of this section. That judgment contained these propositions;-

a) "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…"

b) Of relevance would be "countervailing" consideration 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.

c) The fact that the authority had decided to seek this relief was of relevance, but the relevance and weight of their decision "will depend above all 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".

d) "The court's discretion is absolute and injunctive relief is unlikely unless properly thought to be "commensurate" – in today's language proportionate"

11. Lord Bingham (at 32) endorsed the first of these propositions in terms stating "the court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment".
12. He added (at 37) "As a public authority the English court is prohibited by Section 6(1) and (3) and (a) of the Human Rights Act 1998 from acting incompatibly with any Convention right as defined in the Act, including Article 8. It follows, in my opinion, that when asked to grant injunctive relief under Section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so"
13. It is plain from a reading of pages 11-16 of the note of his judgment that the judge had the relevant principles of law before him and fully in his mind when approaching his decision. The issue is whether he applied them.

The Grounds of Appeal

14. The first three grounds can be considered together. They are that the requirements of the order constituted a disproportionate interference with the appellant's Article 8 rights, that there was no real prospect of the appellant being committed to prison for a failure to comply with the order made and that the order failed properly to take into account the appellant's personal circumstances and the hardship she would suffer were she to attempt to comply.
15. At the forefront of this argument is what has been the appellant's case throughout that though she is anxious that these breaches of planning control be rectified she lives in genuine and significant fear of provoking the second defendant which inhibits her ability to take action. Mr Deakin stresses the violent matrimonial history which I have summarised above, and says that the second defendant and/or those he has let onto the land are the persons responsible for these breaches. She has always been in fear of him, as witness the orders made by the county court in her favour. She contacted the council in 2006, before these proceedings were instituted, saying that she was afraid of her ex- husband. On the occasion of the site visit at the start of the trial she was so disturbed by the late arrival of a police escort, which the respondents had arranged, to facilitate the site visit ordered by the court following notification given by the second and third defendants that access to the Respondents was denied, that she locked herself inside her car with the engine running until the police arrived.
16. All these submissions were made to the judge. I remind myself that my jurisdiction to consider this matter is an appellate one, that the judge was exercising his discretion and that on normal principles I would only be entitled to interfere with that exercise if he had failed to take into account matters he ought to have taken into account or taken into account matters that he ought to have left out of account. Mr Deakin realistically recognises the hurdle he faces and says in terms that the judge's findings about the sense of fear the appellant experienced was a perverse finding of fact by him.
17. It is not fair, he argues, to say that she has avoided any attempts to take action. On 18 April 2008 she had instructed solicitors to write letters to the second and third defendants pointing out the then current enforcement notice and insisting that they comply with the terms of it with immediate effect. She also went to Bardwell Hall on 3 March and 19 March 2012 (on the latter occasion with her daughter) and discussed removal of offending material. There is no more that she could have done argues Mr Deakin. Even if her fear of her ex husband is not well founded it is the subjective fear that matters and should be taken into account, and the judge has failed to do so, but has conflated the issue of fear and her claimed inability to act. At least the matter should be sent back to him for reconsideration.
18. Reading the judgment it is plain to me that all these points were fully before and considered by the judge at this five day trial at which he saw all the relevant parties giving evidence including the appellant and her ex husband. He sets out the appellant's case between pages 4 and 7. His conclusions should be set out in full.

"She maintains she is unable to go near her former husband, the second defendant, because of his past violence and she is thus handicapped in dealing with Bardwell Hall and the Bardwell Hall land. I do not accept those contentions. Mrs Reynolds is an intelligent able woman. She has the means to compel compliance by taking legal action. She gave evidence that she did not wish to sell the land because it represents her three children's' inheritance and is a very valuable property. But the three children are aged 27, 23 and 20. They are all adults. According to the evidence they inherited about £1 million from their grandmother, separate from Bardwell Hall. According to Mr Reynolds he is funded by his children to live part of the year in Australia and New Zealand and part of the year on the Isle of Man. I can see no reason why the legal title to Bardwell Hall should not be regularised so that the three children become the legal owners. If Mrs Reynolds secured that she would be free of the responsibility of ownership. She hardly ever visits Bardwell Hall and has no desire to have anything to do with it. But as it is she remains on the title and she cannot avoid her responsibilities by simply saying she can do nothing. She can take action and she should."

And he continued as follows:-

"I find that Mrs Reynolds has behaved responsibly, she has filed a statement and a defence but she has stopped short of doing anything to regularise her position. I do not accept that she is afraid of Mr Reynolds and cannot do anything. The evidence is that he is abroad nearly all of the time. I do not accept that she is so frightened and intimidated by Mr Reynolds that she cannot so anything. He is only present a few days a year. She is the mother of three adult children, she is close to them and this should be done without further delay."

19. I do not read these passages as a finding by the judge that she was not in fear of her husband, rather that in the circumstances, which include the support of her children to whom she is close, the fact that he lives outside the country for all but a small part of the year, and the fact that she is not without resources, principally the property itself, that genuine fear was no justification for her almost complete inactivity over this matter for now many years. I cannot accept that his findings in the judgment even approach the point where it can be said they were wrong in law or not open to him on the evidence he heard.
20. Mr Leigh for the councils argues as he did below that she could divest herself of her interest in the land. She has a true interest in that she owns it, and it is a valuable asset which she wants to retain not for her own enrichment but for the benefit of her children. As owner of the property she could at least, having written to the third and fourth defendants, clear them from the land by legal action. She could instruct contractors to clear the land, there being a clear itemised and unchallenged list of items that constitute planning breaches and of items which on the other hand are legitimately on the land for agricultural purposes. In those circumstances argues Mr Leigh it is not an answer to this claim to say that she had a subjective fear and for that reason could not comply. The judge did not doubt that she was afraid of her ex husband but did not accept that that fear was so great that she could not do anything do resolve this long standing problem.
21. I have to conclude that all the arguments addressed to me, ably and with great vigour by Mr Deakin, echo the case that was being put by the appellant to the judge below. The judge was aware of the legal principles at issue and reached a decision based on a great deal of evidence, the fact that he knew about the case having case managed it from the outset, and a site visit paid with all the parties at the outset of the trial. His decision in that regard cannot begin to qualify for the epithet perverse or be open to review in an appeal of this nature.
22. As for the suggestion that the judge ought to have found that the Appellant would never be committed if she failed to comply with the order, I regard that as an open question which would, if the issue arose, fall to be determined in the light of what the Appellant has and has not done, once this appeal is over. If she continues to do nothing at all then she might indeed be at risk. If on the other hand she has taken steps, instructed solicitors or contractors or the like, then, even if that has not been successful, a different view might well be taken. The matter would involve a close examination of her means and the position of her children under the grandmother's will. It cannot be the case that this judge at the time of considering whether to make the order sought should have found that the possibility of committal could be excluded on a prospective assessment of her position. Rather, he was of the view that there were things she could have done and had not yet done to try to remedy the position.
23. In relation to paragraph 1 j & k of the order, relating to that part of Great Carr Wood registered under title number SK156663, ground 4 of the notice alleges that no such order should have been made as the Appellant had no interest in that land, which had once formed part of the Bardwell Hall land and was separated off from it. The only interest she had was the option to purchase the freehold when it was sold to the second defendant's company, that option expiring in December 2016. The current freeholder is the fifth defendant and the land is occupied or used by the third and fourth defendants by leave of the second defendant. She had never had anything to do with the land nor had she paid or received any rent for it.
24. Mr Leigh argues that she did retain an interest in that she was a joint tenant under the terms of the yearly tenancy granted to her and the third defendant in 1987, at a time when the wood was part of the Bardwell Hall land, and therefore that right persisted and can be traced through even after the sale of the freehold to the current owner. The judge rejected her denial of interest in the wood, without stating why he did so, let alone by the route advanced by Mr Leigh, who concedes that nowhere in the judgment is there any explanation of how he came to his view. A note as to the ownership of the various holdings, introduced in evidence by the councils, and of uncertain evidential status, does not deal with this point.
25. But of more concern to me is that, whereas she remains the legal owner of the farm, and that is the understandable basis on which the judge found there was more she could have done to rectify the breaches committed by others there, at best in relation to the wood she had the exiguous or vestigial relationship contended for by Mr Leigh. The question that therefore arises is how she could as an absentee tenant have realistically exercised any control over activities on that land, carried out by the second defendant and/or the third and fourth defendants, owner and lessees/licences respectively, and so compel them to rectify the breaches. The judge never addressed this issue, and if he had it is entirely possible he would have reached a different conclusion from that which he reached in relation to the farm proper. By contrast the councils do have the benefit of this part of the order as against the other defendants, the obvious targets for such a remedy on every score. In my judgment that is appropriate relief in this respect, and the judge was wrong to extend these provisions to the appellant at all.
26. Ground 5 says that the scope of the order made extended beyond the scope of the antecedent enforcement notices in certain respects set out fully in Mr Deakin's skeleton at paragraph 59. He concedes there is no requirement that each allegation must be backed by an enforcement notice, and it is the case that the site visit on day one of the trial established, on a basis that was not in dispute, exactly what the state of affairs was on the ground at that time. His better point under paragraph 4 of the order is that this requires the appellant "not to permit any worsening" of a listed building on the farm. Preventing decay in such a building is not a matter of planning control, and therefore not apt to be enforced under s 187B, but is dealt with where necessary under The Planning (Listed Buildings &c) Act 1990 s44A, which contains an enforcement provision which entirely echoes s187B, but only in respect of breaches of s 9 (1) or (2) of the Act, namely a contravention of s 7 (execution of works of demolition alteration or extension without authority) or execution of works without complying with any condition attached to the consent.
27. There was no evidence that the appellant had done either of these things at any time to this Grade II listed barn or to Bardwell Hall itself. The judge was never directed as to the different requirements of the two regimes, as Mr Leigh candidly accepts, and in my view there is no warrant for including the appellant within the grip of paragraph 4 of the order.
28. As to ground 6 I agree there is an ambiguity at least about the order as drawn. There is no justification for making the appellant liable to reimburse the costs incurred by the councils in rectifying non-compliance with any part of the order which does not impose liability on her. The order as it stands should be replaced with an order in the terms suggested on page 15 of the skeleton of Mr Leigh, save that references to Great Carr wood (paragraph 1 (j-k) of the Order) be deleted insofar as they refer to Great Carr Wood land.
29. Finally ground 7 relates to costs. The issue here is whether the order as drawn reflects what the judge said he proposed to order in discussion at the end of his judgment. He was plainly intending that the more culpable defendants in terms of their responsibility for the breaches were 2, 3 and 5 who should each be liable for 25% of the costs, whereas the appellant and the fourth defendant should only be liable each for 12 ½%. He was persuaded by Mr Leigh to alter that to the extent of making the first group of three jointly and severally liable for 75%. No such alteration was asked for or made in the cases of the other two. The words "jointly and severally" should therefore be deleted from that part of paragraph 9 of the order which relates to the first and fourth defendants.
30. This appeal succeeds therefore to the limited extent indicated above.