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
		3 March 2015

MRS JUSTICE PATTERSON:

1. This is an application by the claimants, Harlow District Council and Essex County Council, for an interim injunction under section 222 of the Local Government Act 1972 and 187B of the Town and Country Planning Act 1990 against 35 known defendants and persons unknown.
2. From 8 October 2013 members of certain traveller families have come to Harlow district. Predominantly they are members of the McGinley and Stokes family, but they are not exclusively from those family groups. The pattern has been for the families to establish themselves in one encampment, the local authority and police then take action against them, move them on, the encampment disperses and then re-appears in another part of the district and then the process starts over again.
3. Over the last 17 months numerous attempts have been made through the use of other powers, but in particular, the Criminal Justice and Public Order Act 1994 to move the families on, but all attempts have failed. In total, I am told that there have been 109 encampments to date within the district of Harlow. The encampments have taken place on a mix of public and private land. At times there have been encampments of up to 280 people in 69 caravans with associated vehicles and animals, including dogs and horses. None of the encampments has had planning permission, nor has it been the subject of any application for planning permission.
4. Elizabeth Fitzgerald, the Planning and Development Manager of the first claimant, says in her witness statement that none of the pitches which have been used as encampments are suitable or fit for long-term occupation. She sets out in her witness statement the position with regard to the development plan and gypsy and traveller accommodation needs. It is accepted that the council is required to make provision for gypsy and traveller accommodation within the district, but at present there is a policy void on that particular issue. A recent assessment of need has been undertaken in 2014 by Opinion Research Services on behalf of the Essex Planning Officers' Society entitled 'Essex Gypsy and Traveller and Travelling Show People Accommodation Assessment'. That was compiled in July 2014 with an update report in September of last year. The document identified a need for 25 additional pitches within the district by 2033, with nine of those required by 2018. The first claimant is working with the second claimant with a view to bringing 10 currently dilapidated and unused pitches back into use and looking at the potential sale of land for the use of private pitches. The delivery of those 10 pitches will satisfy, it is said, the claimants' unmet need in 2018.
5. Ms Fitzgerald's witness statement continues, in paragraph 12, as to the various matters that have to be had regard to in determining applications for traveller signs. In particular, they include the existing level of local provision and need for sites, the availability or lack of alternative accommodation for the applicants, other personal circumstances of the applicant, and the locally specific criteria used to guide the allocation of sites in plans or which form the policy, where there is no identified need for pitches and plots, to assess applications that may come forward on unallocated sites. The Local Planning Authority should determine applications for sites from any travellers and not just those with local connections.
6. Ms Fitzgerald repeats that there have been no planning applications submitted by the groups of travellers since October 2013. She records that the defendants have been advised to contact the Essex Countywide Gypsy and Travel Unit with a view to discussing the merits of pitches within Harlow or making alternative arrangements with bordering the district which may be suitable. She is aware that certain meetings have been with certain of the defendants and that certain of them have, in fact, pitches elsewhere in the country, in particular in Barnsley and in Stoke.
7. The sites occupied to date are highway verges, grass verges, schools, enterprise zone land or public amenity land. None of those are considered to be appropriate sites for either permanent, transit or temporary gypsy and traveller pitches. In particular, Ms Fitzgerald says that they prejudice the short and medium term use of the land when it is recreational land allocated recreational use by members of the public.
8. Her witness statement went through the various criteria which have to be addressed and concludes that, first, in terms of the current provision within the district the council has means in hand which should enable it to deliver appropriate sites by 2018. In terms of the availability, or lack of, alternative accommodation for the applicants, she sets out that she is not aware of the defendants (or any of them) endeavouring to find any alternative suitable locations within the district. In so far as any other personal circumstances of the applicants are concerned, she has not been advised of any personal circumstances on the part of the group of defendants that would override normal planning considerations.

In terms of the locally specific criteria used to guide the allocation of sites in plans there is nothing which indicates that it would be appropriate to grant permission on sites which have hitherto been occupied by the defendants.

9. So far as the other criteria are concerned:

(1) Promotion of peaceful and integrated coexistence between the site and the local community.

She sets out that as can be seen from other statements (to which I will refer shortly in this judgment) the actions on the part of the defendants have created substantial discordance with the settled traveller and non-traveller community, such that it is unlikely that a peaceful and integrated coexistence could now be created.

(2) In terms of collaboration with health services and access to appropriate health services.

Given the size of Harlow and ease of access from within the core of the settlement to health facilities, access would be readily available to such services if located on an authorised site with a postal address.

(3) To ensure children can attend school on a regular basis.

Given the size of Harlow and ease of access from within the core of the settlement to educational establishments, access is readily available from any authorised site with an established postal date.

(4) To provide a settled base that reduces the need for long distance travelling and possible environmental damage.

She understands that the defendants have settled bases elsewhere, to which I have already referred, and have not been looking for a settled base in Harlow.

(5) To provide for proper consideration of the effect on local environmental quality and on the health and well-being of any travellers that may locate there or on others as a result of the new development.

She says that the current locations being used by travellers are entirely at odds with that requirement cited as the pitches have been, often on the roadside, adjacent to main thoroughfares where the quality of environment is exceptionally poor.

(6) To avoid placing undue pressure on local infrastructure and services.

She says there that, subject to being provided in the appropriate location within the district a lawful development will not have any detrimental effect on local infrastructure.

In her statement she continued and dealt with the issue of flooding, which is not relevant in the current circumstances. To the extent that traditional lifestyles can contribute to sustainability that, she comments, can be dealt with on appropriate sites. As a result, she concludes that the existing use of land which has occurred is an unauthorised use of land and a breach of planning legislation.

10. The consequences of the unlawful encampments on the part of the defendants have been five-fold so far as the claimants are concerned.

(1) Human excrement has been left at each site. The known defendants have been asked why they have not been able to use the toilet facilities within each of their caravans and their replies have been consistent, namely, it is dirty to do so. The consequences of that approach, as graphically revealed in the photographic evidence before the court, is a volume of raw excrement left at each encampment site. As Mr Pitt, the current acting Head of Environmental Health Services Environment and Licensing Manager with the first claimant, sets out in his witness statement, such an accumulation of untreated faeces is prejudicial to human health. Not only is there raw excrement, but excrement has been left in socks and on toilet paper which has been deposited at the encampments. As the encampments have been at or close to school sites, children's play areas and other recreational areas certain such sites have had to be closed whilst the equipment and the area is cleaned and restored to a condition where it is safe for the public to use. On some occasions owners taking their dogs out for walks have had their dogs come back covered in human faeces, thereby imposing a requirement to clean up their pet upon their return home.

(2) On each occasion when the encampment has moved on large amounts of rubbish have been left behind. Sometimes that has included LPG cylinders which, both when used as part of the encampment and subsequently being left, are a risk to public safety according to evidence submitted by the fire officer. At one stage a LPG cylinder was in use in a public space proximate to Passmore School exhibiting a clear risk to public safety. Photographic evidence shows the volumes of rubbish left behind. Sometimes it is stacked up in significant amount clearly impeding the enjoyment of the public of areas of public open space and exposing them to risks.

(3) The encampments have caused damage to land. Again, there is voluminous photographic evidence of fields churned up by muddy tyre tracks, evidence of fires and deposit of litter and damage to gate posts as the defendants have forced their way on particular occasions onto new sites.

(4) Many is the time, according to Ms Ridgley, the Community Safety Team Manager of the first claimant, that the first claimant has done works to prevent entry, such as by the erection of bollards and security of fencing to prevent access to a likely traveller site only to have their effects literally ripped up as the defendants have entered onto the site and taken possession of it.

(5) As a consequence of the above, there has been growing community tension. That has resulted in many complaints to the first claimant, activity on social media and a march planned and organised for the 14^th of this March 2015 entitled 'Get Travellers out of Harlow'.

(6) A significant practical example of the difficulties caused by the defendants is the problems that their encampment caused at Fresh Start Independent School. That is a school which caters for young people with behaviour, emotional and social difficulties. It provides education for children of the County of Essex with significant educational needs. All of its pupils are statemented, many with autism and hyperactivity disorder, with anger difficulties and a history of offending behaviour. The head teacher had to close the school on 13 October 2014 for one day due to an unauthorised encampment setting up on the hard-standing inside the entrance to the school and again on 11 December 2014, four days early for the Christmas holidays, because of another encampment adjacent on the old Passmore School site, which was disruptive to the vulnerable children at the school as well as the problems caused by human excrement, the use of LPG cylinders, both of which I have referred to earlier.

(7) Photographic evidence of the encampments or the condition shortly after the encampment has moved on at the Greyhound Car Park, Cold Harbour Road, Staple Tower as well as the old Passmore School paint a vivid picture of the impact of the defendants' activities.

11. In addition, there have been complaints to the first claimant about the antisocial behaviour on the part of the defendant. The presence of loose, untethered and aggressive dogs, abandoned horses, noise from generators, loud music and nuisance caused by children, vans driving and parking on public footpaths, cycle tracks and public open space have all caused complaints from ordinary members of the public. Despite a concerted effort involving the police and the local authority acting in accordance with their agreed protocol and applications to court for eviction of the defendants, their behaviour of moving onto a different site within the district and starting all over again has remained with no sign of it ceasing.
12. All of the defendants have been offered a Bricks and Mortar Assessment by the Housing Operations and Advice Manager. None have taken that up.
13. There is within the District of Harlow a push to increase employment opportunities as a result of the designation of an enterprise zone. The Head of Regeneration within the Enterprise Zone speaks in his witness statement of the deleterious effects of the encampment on the prospect of attracting new businesses and jobs. Certain of those with whom he has been developing business contacts have written to complain about the effect of an encampment upon the prospect of further development within the administrative district of Harlow.
14. As a result of all of the above the Head of Governance took the decision on 22 January 2015 that it was expedient for the promotion and protection of the interest of the inhabitants within the area of Harlow to institute the current proceedings.
15. All of the defendants have been served in accordance with the ex parte order obtained from Walker J on 20 February 2015. I am satisfied that all have been duly served and appropriate steps have been taken in relation to those persons unknown. None have attended court.
16. The submission made by the claimants is that, in these circumstances, it is expedient to grant a district wide injunction. Harlow District is small; it is some 11.69 square miles. A plan before the court showing the previous encampments illustrates them scattered across the district.
17. It is, of course, a matter of fact and degree as to whether a district wide order, as is sought, is proportionate. I have no doubt, as a result of the circumstances which I have set out, that the order sought is both necessary and proportionate. First, there has been a clear breach of planning control for some 17 months and it is reasonable to apprehend further breaches should no further action be taken. Second, persistent efforts by the public authorities to deal with the problem by other means have failed. Third, the approach of the local authority hitherto has been expensive to the public purse, both in terms of money, but more significantly in terms of time spent without any visible change to the behaviour on behalf of the defendants. Third, the consequences of the unlawful behaviour and breach of planning control are not conducive to the best interest of the other law abiding residents within the district.
18. It is clear from the evidence before the court that there are no children with particular needs, nor any other circumstances on behalf of the defendants that could outweigh the necessity for the order which is sought. As I have indicated, in my judgment the order sought is both necessary and proportionate.
19. As a result, in the circumstances the balance of convenience lies, in my judgment, heavily in favour of the grant of the injunction required and requested, which I so order.