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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
IN THE MATTER OF AN APPLICATION UNDER
SECTION 187B OF THE TOWN AND COUNTRY PLANNING ACT 1990

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 February 2017

HH Judge Karen Walden-Smith :

Introduction

1. The Claimant, Wokingham Borough Council ("Wokingham BC") seeks an injunction pursuant to the provisions of section 187B of the Town and County Planning Act 1990 ("TCPA 1990") against the Defendants to prohibit breaches of planning control on land known as Hare Hatch to the south of Bath Road, Berkshire RG10 9HW ("Hare Hatch"). The Defendants are Mr and Mrs Scott, who are owners of the land, and their various tenants who all run small businesses on the land, together with "persons unknown". Mrs Scott (the Second Defendant) only has a limited involvement in these proceedings. She only remains a landowner, as the mortgage company was not willing to release her from the mortgage deed.
2. I have been greatly assisted in this matter by Counsel acting for Wokingham BC, Miss Saira Kabir Sheikh QC and Counsel acting for Mr and Mrs Scott, Mr Stemp. I have also been assisted by those of the Defendants who did attend, namely Mr Chamberlain, Mr Parry, Mr Mills and Mr Timms who were able to give me an account of the potential impact upon them of any injunction, in addition to the information that was provided by way of their witness statements. Mr Wheston attended on Monday and Tuesday, Mrs Sando (on behalf of her husband Mr Martin Sando) attended on Monday. Mr Wheston explained that he was unable to attend the hearing for any longer as he had to attend to his business, I imagine that is the same reason Mrs Sando did not attend beyond the Monday. I am still able to take into account the evidence that they have provided in statement form with respect to the detriment they say they will suffer if an injunction were to be granted. All the Defendants who did not have the benefit of representation, whether they attended the hearing or not, can be assured that I have taken full account of all the matters they have raised in their various statements.

The Hearing

3. This case was listed for 2 days, it in fact took 3. The reason for this is that numerous arguments were raised as to why the hearing of the injunction application could not proceed. It was not until I had been able to consider all the arguments, give further time to the unrepresented Defendants to consider papers, and give my various rulings, that the application could be considered.
4. The first application was made by Mr Stemp on the basis that witnesses were required to give oral evidence in order that they could be subjected to cross examination. In particular he wished to cross examine Laura Callan, a principal planning officer in Development Management at Wokingham BC, and Clare Lawrence, head of Development Management and Regulatory Services at Wokingham BC, with respect to an area of dispute as to the enforcement notice and the withdrawal of the appeal against it. This case had come before Edis J. on 15 July 2016 and, recognising this was an area of dispute, he had provided that if there were to be any applications for disclosure or for the calling of oral evidence for the purpose of cross-examination, there needed to be an application served by 15 August 2016. There was an application for disclosure, but no application for witnesses to be called to be cross-examined. Wokingham BC did not agree to Mr and Mrs Scott being given permission to cross-examine Ms Callan and Ms Lawrence. While those two witnesses were present in Court, they were not expecting to be cross examined.
5. I gave a ruling that the Defendants did not have permission to cross-examine either Ms Callan or Mrs Lawrence. The order of Edis J. did not provide that there would be cross-examination, he merely gave the Defendants permission to make an application by a certain date. No explanation was provided by the Defendants as to why the application had not been made by the date specified or even before the hearing. I had been surprised to see from the skeleton argument, filed by Mr Stemp on behalf of the First Defendant on the day of the hearing, that an assumption had been made that cross examination would be permitted. This is a part 8 claim and it would be unusual for live evidence to be called. That is, no doubt, why Edis J. gave permission for an application to be made as he was alive to there being a factual dispute with respect to the withdrawal of the appeal against the enforcement notice. However, it was a matter for the Defendants to decide whether they wanted to make an application for permission and for the court to then determine, having heard arguments from both sides, as to whether permission ought to be given – the Claimant then having the opportunity to prepare for such a hearing. It would be unfair on the Claimant's witnesses to be cross-examined when they had not had the opportunity to prepare themselves for cross-examination, particularly by familiarising themselves with the communications between Wokingham BC and Mr Scott. Mr Stemp contended that it was necessary to hear oral evidence in order to be able to reach a resolution of the factual dispute as the First Defendant was reliant upon his interpretation of the circumstances of the withdrawal of the appeal and discussions with respect to the issuing of a certificate of lawful existing use ("CLEUD") to make out his case in law (relying in particular on Staffordshire County Council v Challinor [2008] 1 P & CR10). I did not agree with his contentions and did not consider that there was any need for oral evidence and cross examination. It was perfectly appropriate in this injunction application to reach determinations on the basis of the written evidence and documentation before the Court. I therefore did not allow an adjournment of the injunction hearing on the basis of the First and Second Defendants' application.
6. The Third to Ninth Defendants were all unrepresented and, as set out above, they did not all attend the hearing. The bundle of papers before the court had not all been seen by those Defendants who were without representation. It appears that this had happened because the solicitors acting for the First and Second Defendant had placed herself on the record for the purpose of submitting the acknowledgment of service by each of the other Defendants and filing their statements. This she had carried out pro bono but unfortunately did not notify the Claimant or the court that she was no longer acting for all the Defendants. The consequence of this was that the Claimant had served all the papers upon the solicitors, who were purporting to be on the record, and not the individual occupiers. The Claimant cannot be blamed in any way for that, the fault lies in the failure to notify the court and the Claimant that the Defendants (other than the First and Second Defendants) were acting in person. I gave the individual Defendants time to consider the bundles in order that they had an opportunity to see that which what they had not already seen. Two of those Defendants, Mr Chamberlain and Mr Parry, sought an adjournment of the hearing in order that they could obtain legal advice as they were contending that their use of the land was "ancillary use" to the historically permitted use of horticulture.
7. I did not allow this application for an adjournment. I did not accept that the Fifth Defendant, Mr Chamberlain trading as Quality Garden Buildings, and the Ninth Defendant, Mr Parry trading as Garden Trends, had not previously known that there was an argument with respect to their businesses being ancillary to the permitted use of horticulture. This was clearly something that had always been an issue and the Fifth and Ninth Defendants, together with the other unrepresented Defendants, had had plenty of time to instruct legal representation if they had wanted it both with respect to the application for an injunction and with respect to the planning matters. I was satisfied that the issues the unrepresented Defendants were primarily concerned with were either being dealt with in the course of submissions by Counsel on behalf of the First and Second Defendants and, insofar as these differed or the Defendants were potentially in conflict, the Defendants were themselves able to deal with the issues, such as the impact any injunction would have upon their own business. Mr Chamberlain expressed concern at the end of the hearing that I might have thought that he and Mr Parry were deliberately endeavouring to delay the case. I assured them that I did not consider that to be the case and understood that they, and the other unrepresented Defendants, were just anxiously endeavouring to protect their own business interests.
8. The issue as to the use of the land had been dealt within the course of the planning process. While at earlier hearings the individual Defendants had argued that the application for an injunction should be adjourned until after the planning process had been concluded, the planning process had taken some considerable time and had now concluded. The argument that it was necessary to adjourn in order to deal with the planning issues first had therefore gone. I made it clear throughout that this application was not an opportunity for the Defendants to re-argue the planning issues and that it is not for this Court to delve into these matters.

The Background

9. Hare Hatch falls with the Metropolitan Green Belt. Part 9 of the National Planning Policy Framework (NPPF) deals with the protection of the Green Belt. The NPPF sets out that :

"The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence." [para 79]

and that

"As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances." [para 87]

and

"When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations." [para 88]

10. Hare Hatch has historical lawful planning use as a horticultural nursery together with a permitted farm shop (pursuant to planning permission F/2007/0225), a permitted café (pursuant to planning permission F/2007/1428) and a permitted house, with a restriction that it is to be occupied for agricultural or horticultural purposes (pursuant to planning permission F/2002/7504). An application for change of use to a farm shop was approved with a condition that goods should be limited to fresh farm produce within a 10 mile radius (F/2007/0225) and the condition relaxed on appeal. An application for the change of use of display area to café/coffee shop with dry goods was refused on green belt grounds, but allowed on appeal (F/2007/1428). An application for the extension to the farm shop to provide a butchery (part retail) was approved (pursuant to an application F/2008/2295) but with a condition that the use was limited to a retail butcher and no other A1 use. Other applications for planning permission were refused: for the erection of a building on green belt grounds, for the erection of a building for retail sales of pet foods and accessories was refused on green belt grounds, for change of use of display area to a restaurant refused on green belt grounds, for the change of use from glasshouses to retail sales and display was refused on green belt grounds, the proposed redesign and redevelopment of horticultural site including increase in retail sales space, involving demolition and replacement building plus revised parking layout and additional landscaping was refused on green belt grounds (and an appeal was withdrawn), and an application for the retention of two display conservatories was refused, and an appeal was withdrawn. Where permission was refused and appeals against refusal dismissed, the Planning Inspector has referred to the negative impact on the openness of the green belt and an increase of visitors, including "a transition from a nursery with ancillary sales to a garden centre."
11. As is set out above, the First and Second Defendants are the registered owners of Hare Hatch, title being registered at the Land Registry under title number BK320148, the property having been purchased in or about 1993 when the site was derelict. The Second Defendant is still on the registered title as a result of the mortgagee holding her to her personal covenant and not releasing her from the title, but she otherwise has limited interest as the First and Second Defendants are no longer a couple. It is clear from the summary of the planning permission above, that the First Defendant (at least) is very familiar with the planning process and the steps that need to be undertaken in order to have legitimately planning permission to develop.
12. Section 171A(1) of the TCPA 1990 provides that carrying out development without planning permission is a breach of planning control. Section 172(1) of the TCPA empowers a local planning authority to issue an enforcement notice where it appears that there has been a breach of planning control and that it is expedient to do so, having regard to the development and other material considerations. There is a right to appeal to the Secretary of State pursuant to the provisions of section 174 of the TCPA 1990. The owner of the land is in breach of the enforcement notice if there is a failure to take a step or cease an activity required by the notice, and it is a criminal offence for an owner of land to be in breach of an enforcement notice (s.179(1) and (2) of the TCPA 1990). A person with control or an interest in the land must not carry on an activity which is required by the notice to cease, and he is also committing an offence if he does so (s.179(4) and (5)).
13. Hare Hatch falls within the area of the Claimant and on 24 October 2012 the Claimant served an enforcement notice alleging the unauthorised change of use to a garden centre with retail and residential uses. This enforcement notice was withdrawn on the basis that further unauthorised uses had commenced and on 20 August 2013 a further notice was served ("the Enforcement Notice") identifying the following breaches of planning control:

"Without planning permission, 1) the material change of use of the land from horticulture to a mixed use comprising horticulture, A1 retail, A3 restaurant/café, D2 children's play facilities and the stationing of a residential mobile home 2) the construction of hard surfaced areas for car parking and outdoor retail use, 3) the erection of structures for purposes ancillary to the mixed use."

14. The enforcement notice required cessation of the unauthorised use of land for retail, restaurant/café and children's play uses, removal of items, goods equipment and structures associated with these uses and cessation of the use of the land for the stationing of the mobile home and its removal from the site, along with the excavation of the hard-surfaced areas.
15. Existing lawful rights may be asserted in the course of any appeal against an enforcement notice pursuant to the provisions of section 174 of the TCPA 1990. The First Defendant lodged and then withdrew an appeal against the enforcement notice. The First Defendant contends that he had entered into discussions with the Claimant prior to the submission of evidence for the appeal and that he withdrew the appeal on the basis of discussions he had with the Claimant about how the Claimant would receive an application for a Certification of Lawful Existing Use of Development (CLEUD). Section 191 of the TCPA 1990 provides:

"s. 191

(1) If any person wishes to ascertain whether—

(a) any existing use of buildings or other land is lawful;

(b) any operations which have been carried out in, on, over or under land are lawful; or

(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.

(2) For the purposes of this Act uses and operations are lawful at any time if—

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.

(3) . . .

(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application."

16. The essence to the First and Second Defendants' defence to the application for an injunction is that, while it is accepted that "…lawful rights will be lost if an enforcement notice is served and the rights are not then raised as a ground of appeal" (per Keene LJ in Staffordshire County Council v Challinor [2008] 1 P&CR 10 at 47), it is contended that there is a defect in the enforcement notice, as it seeks to enforce against lawful uses, and that there is a reason the First Defendant decided not to pursue the section 174 appeal. What is asserted is that the First Defendant was "brought to understand" by the Claimant "that a CLEUD could properly be pursued for some of the matters the subject of the enforcement notice and that it was only following receipt of Counsel's advice that "the Claimant changes its stance demonstrably, resulting in the refusal of the CLEUD application not for reasons of evidential inadequacy in the application but on the simple basis that there is an extant enforcement notice" and that a CLEUD could never be granted.
17. The application for a CLEUD was submitted by the First Defendant pursuant to the provisions of section 191 of the TCPA 1990 for the retail sale of goods to the public (class A1). The application was refused on 31 March 2015 as the use sought in the application was subject to a valid enforcement notice requiring cessation of unauthorised retail activity on the site. The refusal of a CLEUD was appealed pursuant to the provisions of section 195 of the TCPA 1990. That appeal was dismissed, with a costs order against the First Defendant. The basis of that decision, made on 5 October 2016, was that section 285(1) of TCPA 1990 provides that 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. The decision to refuse the appeal was then challenged by way of an application for permission to judicially review the Inspector's decision. This has been dismissed by Mark Ockleton, sitting as a Judge of the High Court, as being totally without merit in January 2017 as the inspector had no power to make a different decision.
18. Subsequent to the service of the enforcement notice on 20 August 2013, the Claimant wrote to the first Defendant on 31 March 2015, requiring a timetable for compliance with the notice. A further letter asking for a timetable for compliance was sent on 17 April 2015 (subsequent to the visit that had taken place on 14 April 2015) and another letter setting out that there would be a further visit to the site on 14 May 2015. The site visit took place on 14 May 2016. Evidence of non-compliance with the enforcement notice was collected on that occasion.
19. The First Defendant's planning agent, Green Planning Studio, wrote on 7 August 2015 alleging that the enforcement notice was a nullity. A further letter was sent by Green Planning Studio on 25 August 2015 again alleging that the enforcement notice was a nullity. The Claimant has set out in a response dated 2 October 2015 as to why the Claimant does not accept that the notice is a nullity. The First Defendant's agent has notified the Claimant that the First Defendant would not be attending the PACE interviews arranged.
20. On 8 October 2015, a further planning application was lodged by the First Defendant for the proposed change of use of land and buildings to a children's play area and recreational farm and another application was submitted for the change of use of part of a building. The Claimant decided not to determine these applications pursuant to the provisions of section 70C of the TCPA 1970. Collins J refused permission to judicially review the Claimant, and that application was also refused on a renewed oral application for permission in July 2016. I understand that an application to appeal to the Court of Appeal was withdrawn.
21. The planning process is now at an end. While in previous hearings of this application for an injunction the Defendants have relied upon the existence of the planning matters as a reason for adjourning the determination of whether an injunction ought to be granted or not, now the planning process is at an end that is not a reason to delay determination of the application for an injunction.
22. The First and (following him) the Second Defendant relies upon the dicta of Hughes LJ, as he then was, where he said (in paragraph 75 of Challinor)

"It is certainly possible to envisage rare cases in which this law [that any challenge to an enforcement notice is by way of appeal pursuant to section 174 to a planning inspector] may work some injustice. They will be confined to those in which both (a) there is a defect in the enforcement notice which can irrefutably be established, and (b) the landowner had an understandable reason for omitting to pursue a section 174 appeal. The coincidence of these facts will, I think, be rare. But it is not entirely unknown for administrative errors to lead to the issue of an enforcement notice when there is an existing planning permission, or Certificate of Lawful Use, and the chance of such error is no doubt increased if there are two different authorities concerned in the case. It is no doubt possible that a landowner might be absent abroad, ill, illiterate or simply may wrongly think that his CLU provides an answer and he need take no advice and do nothing. There is, we are told, no power even in an exceptional case to extend time for bringing a section 174 appeal. So in such a case, rare as it may be, the landowner could perhaps find himself with a cast iron defence to a prosecution under an Enforcement Notice, which he is prevented by section 285 from advancing."

23. For the reasons I will set out in detail, I do not accept that this obiter statement of Hughes LJ creates a class of cases, as contended for by the First and Second Defendants, whereby if there is arguably some defect in the enforcement notice combined with an arguable reason as to why the party subject to the enforcement notice decides not to appeal (or withdraws an appeal) that there can be an attack on the enforcement notice which exists outside an appeal pursuant to the provisions of section 174 of the TCPA 1990.
24. The TCPA 1990 creates a statutory code and the First and Second Defendants are seeking to place too much weight upon the obiter words of Hughes LJ. Hughes LJ was dealing with a specific case and in his obiter remarks he was raising the possibility of a situation where an enforcement notice is irrefutably defective and the appeal is not brought for some reason outside the Defendants' control (such as being abroad or being illiterate), then there potentially could be an injustice. In those (rare) circumstances the court may then exercise its discretion against granting an injunction. In my judgment, Hughes LJ was going no further than that. An injunction is a discretionary remedy and Hughes LJ was setting out that if there was a combination of these two factors then that might be something the court ought properly to weigh in the balance against exercising the discretion to grant an injunction. He was not creating a means of challenge outside the statutory code of the TCPA 1990. Any challenge to the enforcement notice is by way of statutory appeal and thereafter by way of judicial review of the decision of the planning inspector (if appropriate). To come to any other conclusion would fundamentally undermine the statutory code created by the TCPA 1990. As Hughes LJ said (in paragraph 74 of Staffordshire County Council v Challinor):

"I agree that the plain purpose of the statutory scheme, and of section 285 in particular, is to prevent any challenge to the enforcement notice on grounds which can be raised before the Inspector under section 174, in any place other than before him, with appeal from him to the High Court and beyond on a point of law. If the Certificate of Lawful Use did provide an answer to the Enforcement Notice, that was a ground of challenge which could and should have been the subject of an appeal under section 174, invoking grounds (c) and/or (d). That is enough to conclude this appeal. In short, section 285 prevails over section 191(6). The latter establishes conclusively the lawfulness of the certificated use at the time of the CLU, but the issue must be raised in the manner prescribed by the statute, namely before the Inspector."

25. A valid enforcement notice does not remove or prevent uses which are ancillary to a lawful use and it does not remove any rights granted under the provisions of the Town and Country Planning (General Permitted) Development Order:

"…an enforcement notice will be interpreted so as not to interfere with permitted development rights under the General Development Permitted Order or with rights under to use land for a purpose ancillary to a principal use which is itself not being enforced against. The authorities go no further than that and certainly do not establish any general right to assert existing use rights at a time when the enforcement notice has come into effect after an unsuccessful appeal or in the absence of an appeal. Such rights must be asserted at the time of appeal against the enforcement notice. If the landowner sleeps on those rights, he will lose them." (per Keene LJ in Challinor).

26. The Claimant has written to the Defendants on a number of occasions with respect to the non-compliance with the enforcement notice and giving warning to the Defendants that an injunction would be sought if there was continued non-compliance. It is the Claimant's contention that it is necessary for there to be an injunction to restrain both existing and apprehended breaches of planning control.

The Statutory Basis for an Injunction

27. Section 187B of the TCPA 1990 was inserted by section 3 of the Planning and Compensation Act 1991, and provides as follows:

"187B – Injunctions 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 subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.

(3) Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this section "the court" means the High Court or the County Court."

28. In South Cambridgeshire DC v Persons Unknown [2004] EWCA Civ 1280, the Court of Appeal held that there was power to make an interim injunction to prevent a breach of planning control in the terms sought: It was wholly satisfied that section 187B of the TCPA, the rules of court and authority gave the court power to make an order against persons unknown.
29. Binding authority as to how the jurisdiction created by section 187B is to be exercised is provided by the House of Lords decision in South Bucks DC v Porter (No 1) [2003] 2 AC 558. Section 187B creates an original, not supervisory, jurisdiction and the discretion whether or not to grant an injunction is to be exercised judicially for the purpose of restraining actual or apprehended breaches of planning control. The court has an obligation to consider whether the granting of an injunction is a proportionate remedy in accordance with the provisions of the ECHR. This is an issue which has particular relevance where there is an injunction sought involving people's homes (in particular in traveller or gipsy cases).
30. While the circumstances in which there is potentially a breach of planning control are infinitely various such that there cannot be a single test devised as to whether it is appropriate for an injunction to be granted, Lord Bingham in Porter helpfully set out the considerations a court should have regard to in the exercise of its discretion:

"The discretion of the court under section 187B, like every other judicial discretion, must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint (City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697, 714), that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant."

31. Lord Bingham went on to say how the planning decisions themselves are for the local planning authority:

"…the 1990 Act, like its predecessors, allocates the control of development of land to democratically-accountable bodies, local planning authorities and the Secretary of State. Issues of planning policy and judgment are within their exclusive purview. As Lord Scarman pointed out in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132,141, "Parliament has provided a comprehensive code of planning control". In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23, paragraphs 48, 60, 75, 129, 132, 139-140, 159 the limited role of the court in the planning field is made very clear. An application by a local planning authority under section 187B is not an invitation to the court to exercise functions allocated elsewhere. Thus it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or (as in Hambleton [1995] 3 PLR 8) that a local authority should have had different spending priorities. But the court is not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show. But all will depend on the particular facts, and the court must always, of course, act on evidence." [para 29]

32. As was succinctly put by the Court of Appeal in Tonbridge & Malling BC v Lyn Marie Davis & Ors [2004] EWCA Civ 194, decisions on planning merits are for the planning authorities and decisions on whether to enforce such decisions were for the courts, taking into account all relevant considerations including those of personal hardship to the party against whom injunctive relief was sought under the Town and Country Planning Act 1990 and in Porter, Lord Bingham expressly approved the guidance given by Simon Browne LJ in the Court of Appeal:

"… It seems to me perfectly clear that the judge on a s.187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that 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 if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, "entirely foreclosed" at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations 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. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission. [para 38]

Relevant too will be the local authority's decision under s.187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on 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. [para 39]

Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case. [para 40]

True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be "commensurate" in today's language, proportionate. The Hambleton approach seems to me difficult to reconcile with that Circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under s.6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought here the safeguarding of the environment but also that it does not impose an excessive burden on the individual whose private interests here the gipsy's private life and home and the retention of his ethnic identity are at stake. [para 41]

I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge." [para 42]

33. It is essential, in determining whether an injunction ought to be granted pursuant to the provisions of section 187B, that the court undertakes a structured and articulated approach as to whether the injunction is granted including the nature of violation of planning control and the impact of the activities undertaken, as against the hardship to be caused to the Defendants in being compelled by injunction to cease those activities.

Discussion

34. The enforcement notice relied upon by the Claimant was served on 20 August 2013. That enforcement notice was appealed against but the appeal withdrawn and a CLEUD sought on 30 June 2014. That CLEUD was refused on 31 March 2015 as the use sought in the application was subject to a valid enforcement notice requiring the cessation of unauthorised retail use on the site. As is set out above, all endeavours by the Defendants to appeal or review the decisions made with respect to the application for a CLEUD have now been exhausted.
35. The First and Second Defendants therefore rely upon the argument referred to above which rests upon what was said by Hughes LJ, obiter, in Challinor. In essence, the argument is that while the Defendants accept that lawful rights will be lost if an enforcement notice is served and the rights are not then raised as a ground of appeal, this is a case where there is both a defect in the enforcement notice and there is an understandable reason for omitting to pursue a section 174 appeal so that the court should not grant an injunction. I do not accept that there is a valid argument for contending that the words of Hughes LJ in Challinor have the import being contended for.
36. Even if there was the possibility of successfully giving such a construction to the words of Hughes LJ, in order to make good the argument, Counsel on behalf of the First and Second Defendants, had to contend that there is a defect on the face of the enforcement notice dated 20 August 2013 in that, in paragraph 5(i) and 5(iv), reference is made to "the unauthorised use of the Land for A1 retail use, A3 restaurant/café use, D2 children's play facilities" and removal of all equipment, machinery and goods used in connection with "the unauthorised use as A3 restaurant/café, including the tables, chairs and other items …" whereas there is permission for a café. Regardless of the permitted use as a restaurant/café the enforcement notice does correctly refer to the unauthorised uses and, as I understand the situation, the complaint is not about the café for which there is permission but the extension of that use. Even if it can be properly contended that the reference to "unauthorised use" as A3 restaurant/café is incorrect, this does not mean that there is a defect in the enforcement notice that makes it a nullity. As was made clear by the Court of Appeal in Edward Davenport v Westminster City Council [2011] EWCA Civ 458, corrections can be made in enforcement notices. In Davenport v Westminster CC, reference was made to Epping Forest District Council v Mathews [1987] JPL 132, and R v Tower Hamlets LBC ex p P F Ahern (London) Ltd [1989] JPL 757:

"Those cases are, in my judgment, authority for two propositions which are determinative of the outcome here: first, that a defect, error or misdescription in an enforcement notice which is capable of correction by the Secretary of State under section 176 is not such a defect, error or misdescription as is capable of making the notice a nullity in accordance with the doctrine in Miller-Mead; second, that if the defect, error or misdescription is the statement that the notice is given under section 171A(1)(a), when in fact it should have said 171A(1)(b) – or vice versa – that is an error capable of correction by the Secretary of State under section 176 …the notice told the appellant what he had done wrong and told him what he must do to remedy it. [para 68]

All this assumes that the validity of the notice was a pre-requisite to the proper grant of the injunction of which the appellant now complains. But it was not. My Lord has referred to section 187B. A local authority is not confined in seeking injunctive relief to cases where it has issued an enforcement notice. It can seek such relief whenever it "consider[s] it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction". I agree with everything my Lord has said on this aspect of the appeal. I add only that the appellant's attempt to argue that the formal authorisation for the commencement of proceedings pursuant to section 187B given by the council's head of legal services in a document dated 22 December 2009 was inapt to cover any application other than one founded on the enforcement notice – a technical point if ever there was one – is quite hopeless. The authorisation is expressed in quite general terms and refers to what is said to be a breach of both "planning control" and "the requirements of the enforcement notice." [para 69]

"… I accept, of course, that one cannot look outside the statutory scheme for some principle or rule whose application might be thought to produce a fairer solution. Our duty, as Lord Scarman said, is "to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole." That we have done. Our duty is to apply the statutory code according to its language, sensibly construed and as Parliament intended. It is not our duty to seek for technical or pedantic reasons why, as a pettifogger might argue, someone as obviously in breach of planning control as the appellant should be enabled to buy further time and to postpone the inevitable day of reckoning, all the time making money out of his unauthorised use of the land. The statutory code is not some game of 'snakes and ladders'. It is a feature of an immature system of law that form is everything: the slightest error of procedure invalidates the proceedings, the merest verbal slip is fatal. A mature system of law, however, is concerned with substance rather than form, justice rather than technicality." [para 71]

37. I do not accept, therefore, that there is an error on the face of the enforcement notice as is contended for by the First and Second Defendant. But, even if that were the case, that does not make the enforcement notice a nullity (as it would be an error capable of correction). Fundamentally, this argument does not work as the basis for refusing the granting of an injunction as the local planning authority does not have to rely upon a breach of an enforcement notice in order to make out the grounds for an injunction. The injunction is to ensure compliance with planning control, the failure to comply with the enforcement notice is clear evidence of a failure to comply with planning control, but it is not a necessary pre-requisite to the obtaining of an injunction.
38. Consequently, even if there was a good argument for contending that Hughes LJ had created a judicial exception to the statutory code created by TCPA 1990 by his obiter words in Challinor, in the circumstances of this case, the First and Second Defendant do not satisfy the first limb.
39. As for the second limb of this "Challinor exception", on their own case the First and Second Defendant have to establish "an understandable reason not to pursue a section 174 appeal." The examples given by Hughes LJ were if the landowner were out of the country, ill, illiterate or wrongly thinks his certificate of lawful use provides an answer. What the First and Second Defendant say is that they were in some way induced into not proceeding with the appeal, by virtue of the representations being made to the First and Second Defendants.
40. It is the First Defendant's case, as is set out in his witness statement dated 1 August 2016, that there were various discussions between him and the officers of the Claimant and some of the elected representatives and that he withdrew the appeal to the enforcement notice "in light of progress made in negotiations with Wokingham Borough Council" and he contends that he had been given the impression from the Council and the councillors that they would consider the CLEU application favourably. It is clear from the correspondence contained in the various bundles I have seen that both the officers, and more particularly the elected councillors, had been discussing potential ways of reaching a compromised resolution. However, as at 23 March 2014, a matter of weeks before the appeal was withdrawn, Mr Scott was writing to his then planning expert in terms of feeling totally deflated and devastated as it had transpired that: "There was never a deal to be done and after a rather positive start discussing the growing, farm, play area, coffee shop and farm shop we turned to the retail (which we all know has been the issue) it all turned sour as Clare said that she could not recommend anything that was against policy as there was a higher body to which they were subject to scrutiny by who were likely to "call in" any decision that went against policy particularly regarding greenbelt issues…". That setback did not persuade the First Defendant not to continue to seek to find a resolution and on 31 March 2014 he wrote to one of the Councillors, John Kaiser, setting out that he would withdraw his appeal on assurance that planning permission would be granted.
41. In an email dated 25 March 2014, before the appeal was withdrawn, the First Defendant wrote to his then planning consultant, Rachel Jones of Simply Planning, that he had spoken to the councillor John Halsall "that there is some merit in the proposal I made" and in an email from the principal planning officer to Rachel Jones on 3 April 2014 it was set out that the planning authority were offering the First Defendant a chance to submit a certificate of lawful use for the site but that the council would still apply for costs if the appeal were withdrawn (even if the costs were not enforced) but that "This will depend on progress being made to remove unacceptable uses and structures from the site." In further emails through 2014, it is clear to me that the Claimant was working with the First Defendant to seek to find a workable resolution. I do not accept the submissions made on behalf of the Claimant that the application for a CLEUD was a purely academic exercise: the First Defendant was, by way of example, being encouraged to have his accountant carry out a forensic accountancy exercise and that would not have been happening if this was a pure academic exercise. However, even if there were representations to the effect that a CLEUD application would be successful, and I have not seen any evidence whatsoever to suggest that it was ever suggested that an application would be successful – merely that an application could be made, such representations could not bind the planning authority (R v East Sussex CC ex p. Reprotech [2002] UKHL 8). The highest it can be put is that there were individuals who were indicating that an application would be looked upon kindly, but such comments cannot be relied upon and it is clear, in any event, that the discussions with respect to the CLEUD application did not give rise to the First Defendant withdrawing his appeal against the enforcement notice. As was put in the course of submissions, the withdrawal of the appeal was a "self-inflicted wound" about which the First Defendant may have been cross but it does not give rise to any argument against the Claimant.
42. It is clear from the evidence before me, both in the form of witness statements and in the correspondence, that this was an issue fraught with difficulties. The Claimant was seeking to uphold its planning obligations, protecting the green belt and resisting creating a precedent which would undermine future enforcement of planning control but in the face of a great deal of public support for the development at Hare Hatch, including from the Rt. Hon. Theresa May MP (then Home Secretary). While it is clear through the correspondence between the First Defendant and both the officers and the elected representatives, that the Claimant was encouraging discussions to find an alternative resolution, there was never a representation that the withdrawal of the appeal would result in the grant of planning permission or CLEUD. Indeed the note made by John Halsall of the conversation between him and the First Defendant on 25 March 2014, records that the First Defendant had been informed that the CLEUD route "had some merit" (which is consistent with what the First Defendant had told his planning consultant on the same date) and that he was to prepare an application with supporting evidence and that the First Defendant "was planning to drop the appeal and hoped that WBC would be lenient with the enforcement process. He said if we were not then he would go to prison as a martyr. I told him that WBC would reserve its position on costs and the enforcement process would proceed." This is clear evidence that regardless of any encouragement that the First Defendant had been given to make a CLEUD application, that application was not linked to the enforcement process. The First Defendant knew that the enforcement would proceed. He had been told so in very clear terms. Counsel for the First Defendant has made much of the correspondence as establishing that the officers of the Claimant had not been alert to the fact that the existence of the enforcement notice meant that a CLEUD could not be issued as reference was made to "both sides agree[ing] lawful use on the site (or part of it)." Even if this were the case, this does not support the First Defendant having been induced to withdraw his appeal. That decision was clearly independently made.
43. The decision to drop the appeal against the enforcement notice was one made by the First Defendant. There is no evidence to support a contention that he dropped the appeal on the basis that he had been assured that in doing so he would be successful in his application for a CLEUD and there is no "understandable reason" as to why the Defendants did not proceed with the appeal against the enforcement notice. Consequently, even if the First and Second Defendants were able to establish that the dicta of Hughes LJ in Challinor created a judicial exception the Defendants are unable to establish that either the first or second limb is made out.

The Application for an Injunction

44. The correct basis for consideration of whether there ought to be an injunction granted pursuant to the provisions of section 187B of the TCPA 1990 is the structured approach set out in Porter. While the local planning authority, as the democratically elected and accountable body, can be expected to have considered whether an injunction is the appropriate and proportionate means of ensuring compliance with planning control, it is most certainly not the role of the court to merely "rubber stamp" the application for an injunction. The court is obliged to carry out a reasoned and structured analysis of whether an injunction is necessary.
45. After withdrawing the appeal to the enforcement notice on 4 April 2014, there was six months in which to comply – that is by 4 October 2014. Save for some isolated matters of compliance, such as the removal of the caravan, there has not been compliance with the enforcement notice and, indeed, some of the Defendants have been invited onto the land subsequent to the service of the enforcement notice. The Defendants have completely exhausted the planning process and any public law challenges that were available.
46. It is, in my judgment, both necessary and expedient for breaches of planning control to be restrained by injunction in this case. The ongoing and extensive breaches of the enforcement notice give clear evidence that the Defendants, unless restrained from so doing, will continue to act contrary to planning control. In her statement dated 10 March 2016, Laura Callun has set out that: "the development [of Hare Hatch] is considered to be incompatible with the countryside and Green Belt location due to the significant harm caused to visual amenity, countryside character and openness of the Green Belt." The Green Belt assists in safeguarding the countryside from encroachment and the Claimant contends that the activities that are being undertaken at Hare Hatch are having a significant detrimental impact - both visual and amenity – by damaging the openness of the Green Belt: "The level of activity taking place on the site arising from the authorised use and the operational development, results in a significant to the character of the land from a horticultural use of the land to a mixed use including extensive retail and leisure uses."
47. There is a clear need for the local planning authority to be able to enforce planning control in the Green Belt in the general interest of the public. Even if there is a general and widespread support of this business, as I am told there is, that support does not circumvent the need for planning control. The Defendants have failed to comply with the enforcement notice over a number of years and, by additional businesses being brought onto the land while the enforcement notice is in force, shows a clear and wilful intention to breach planning control. The fact that other enforcement measures have failed over a prolonged period of time gives considerable weight to the need for injunctive relief being granted. The Defendants, in particular the First Defendant, have been warned over a considerable period of time as to the Claimant's intention to require compliance with the enforcement notice, including inviting him to Police and Criminal Evidence Act (PACE) interviews - as the non-compliance was under criminal investigation – and given the continued breaches it cannot now be said that the Claimant is unnecessarily seeking this injunction. It is, in my judgment, proportionate for an injunction to be granted.
48. The degree of development, both in breach of the enforcement notice and of planning control generally, have been extensive. This includes retail sales areas not required in connection with horticulture, a pet food shop, a fishmongers, an animal petting area, a children's play area, an extension to the permitted café area, outdoor recreational seating, a hardstanding, a mobile home (which I understand has now been removed), a recreational farm area, a marquee, the construction of sheds and summer houses, hot tub sales and additional advertising. The extent and degree of these breaches are such that there is substantial planning harm on green belt, which development has been continuing for years.
49. It no longer seems that there is an issue with respect to occupation of the mobile home on Hare Hatch, as I understand that the mobile home has been removed. However, if this is an issue I should state that I am satisfied that any interference with a residential occupier's rights pursuant to Article 8 of the ECHR is a proportionate interference, given the extent and length of the planning breach.
50. The real impact of an injunction falls upon the various small businesses operating from Hare Hatch. I heard oral submissions from Derek Chamberlain of Quality Garden Buildings who has operated from Hare Hatch for 11 months (that is after the enforcement notice had been served and was enforceable); Gordon Parry of Garden Trends, who has operated from Hare Hatch for 5 years; Alistair Mills of Pet Shop, who has operated from Hare Hatch since 2003; Nigel Tims of Bell Antiques, who has operated from Hare Hatch from November 2014 (and therefore subsequent to the enforcement notice having been served and enforceable). In addition to their oral evidence, I have also read their witness statements and the witness statements of Mr Sando (whose wife attended on the first day of the hearing) trading as Granite Transformations, Mr Wheston of Fish Glorious Fish (who attended the first two days of the hearing), and Mr Woodhead of Deep End Pools.
51. I have no doubt that all of these individuals are hard-working operators of small businesses who will be adversely affected if they are made subject to an injunction, both personally and with respect to their own families, but also with respect to their employees and their families. By way of example, Mr Parry has said that the impact on the business would be "catastrophic" and would impact both upon the financial standing of his employees but also local suppliers, he also referred to an argument that his own business was ancillary to horticulture and therefore not caught by the enforcement notice; Mr Bell has given evidence that he has numerous debts he is seeking to service and reduce and would not be in a financial position to start up in another shop and would have to trade from markets and antique fayres; Mr Chamberlain referred to having another site but that it would be very difficult to find another suitable and affordable site and that he has additional employees that he may have to make redundant, he too contends that his business is ancillary to the business of horticulture and that he too is not caught by the enforcement notice; Mr Mills gave evidence that he was the first franchise to set up at Hare Hatch, that he would have to close the business if the injunction were granted and his staff at Hare Hatch would be made redundant; Mr Sandhu's written evidence refers to the fact that he would have to make redundant two members of staff who work at the site; and Mr Wheston provided evidence that not only would he lose his business and livelihood but it would have a detrimental impact upon both his living arrangements and his custody arrangements with his children. While I have not set out in full all the matters referred to by these individuals I have taken careful consideration of all their written and oral submissions.
52. While I accept the evidence that the various small businesses might not find it particularly easy to find alternative sites for the same cost as Hare Hatch, the site is not unique. An injunction will undoubtedly cause an interference but, save for Mr Mills and Mr Parry, the businesses have set up on Hare Hatch subsequent to the enforcement notice being in place and therefore in the knowledge that their occupation of the site was precarious. All of them, even Mr Parry who has been there for 13 years, has been aware of the enforcement notice for over 2 years and have accepted that once the planning process was at an end then they would need to move on. The planning process is now at an end and in my judgment the interference with their property rights under Article 1 of the First Protocol is a proportionate one. The local planning authority has an obligation to enforce planning control for the greater good, particularly where they are protecting the Green Belt from harm. That obligation outweighs the evidence that the businesses at Hare Hatch are well regarded by the local community. With respect to the argument that the businesses run by Mr Chamberlain and Mr Parry are ancillary to horticulture, the Claimant's position is that the business on the site is not currently horticulture but a "mixed use" and therefore even those businesses are not "ancillary" and therefore do not have planning permission.
53. As far as the impact upon the First and Second Defendants are concerned, this is clearly substantial. So far as the Second Defendant is concerned she is merely on the title as a result of the mortgagee holding her to her personal covenant. Her recourse must be as against the First Defendant with respect to any financial implications. With respect to whether the injunction should bind her, I would wish to hear further submissions from both her Counsel and Counsel for the Claimant.
54. With respect to the First Defendant, he has heavily invested in the site and I am told that the effective closure of the business would result in extreme personal hardship upon himself and his new family. However, he has made it clear through the past years that he will not abide by the planning controls or the enforcement notice. The imposition of an injunction is the only means by which the planning control can be upheld.

Persons Unknown

55. The injunction ought properly to extend to persons unknown in order to prevent future breaches of planning control at Hare Hatch, given the history of individuals being invited onto the site to operate their businesses in the face of planning restrictions. Such individuals need to be restrained from perpetrating identified breaches of planning control and section 187B of TCPA 1990 allows for that (see South Cambridgeshire DC v Persons Unknown, referred to above).

Timing

56. When I heard this matter in late January, the Claimant was suggesting that the Defendants ought to be allowed 60 days to comply. The Defendants had been aware of the application for a considerable period of time and the individual Defendants had acknowledged that once the planning process was at an end they would need to vacate. The suggestion on behalf of the First and Second Defendants that the injunction should not take effect until the end of the year is utterly unrealistic. What I am going to allow is 10 weeks from the handing down of judgment, which will allow until 4pm on 1 May 2017. In my judgment that is a generous period of time for the businesses to find alternative sites, particularly in these circumstances and with this lengthy background of non-compliance.

The Precise Wording of the Injunction

57. The complaints made by Counsel on behalf of the First and Second Defendants about the draft proposed order relate to the order potentially interfering with those matters which are not contrary to planning control. It seems to me that those matters can be dealt with by the simple insertion of the words "save as permitted", but it does seems sensible that any further arguments with regard to the precise wording of the order are dealt with after the handing down of this judgment.

Costs

58. I am minded to make an order for costs against the First Defendant in this matter, but again I will hear further submissions with respect to costs after the handing down of this judgment.
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