England and Wales High Court (Technology and Construction Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT

		BIRMINGHAM CIVIL JUSTICE CENTRE 33 BULL STREET BIRMINGHAM B4 6DS
		Date : 23 February 2007

 


1. This judgment comprises the following sections:

Paragraph 2	Introduction
Paragraph 6	Evidence
Paragraph 8	Background
Paragraph 26	CLU
Paragraph 28	EN
Paragraph 33	The issues
Paragraph 35	Relevant law
Paragraph 51	SCC's case
Paragraph 54	Mr Challinor's case
Paragraph 59	Mrs Robinson's case
Paragraph 65	Discussion
Paragraph 73	Was the EN validly issued and served?
Paragraph 76	Were the activities alleged to be in breach of the EN covered by the CLU?
Paragraph 88	Was SCC entitled to take direct action?
Paragraph 89	Warrant of entry
Paragraph 90	The direct action
Paragraph 105	Did Mr Challinor act as alleged in the Scott Schedule?
Paragraph 106	Human rights issues
Paragraph 116	Were costs incurred by SCC in taking direct action reasonable?
Paragraph 150	Injunction
Paragraph 167	Conclusion
Annex 1	Scott Schedule items

2. The claimant, Staffordshire County Council ("SCC"), pursues claims against Mr Challinor and Mrs Robinson, who are brother and sister, and first and second defendants, respectively. SCC claims from both Mr Challinor and Mrs Robinson payment of £243,685.12 (or such other sum as the court considers reasonable) pursuant to Section 178(1)(b) Town and Country Planning Act 1990 ("TCPA") and, against Mr Challinor, an injunction pursuant to Section 187 B TCPA to restrain him from breaching the terms of an enforcement notice dated 16 June 1997. The enforcement notice was served in connection with land situated at Woodside, Within Lane, Hopton, near Stafford.
3. The land was previously owned by Mr F J Challinor, the late father of Mr Challinor and Mrs Robinson. Mr Challinor and Mrs Robinson are named as executors in the will made on 31 August 1979 by Mr F J Challinor. Mr F J Challinor died on 4 August 1997. The defendants have not applied for probate. However, Mr Challinor accepts that he is the owner of the land within Section 336 (1) TCPA. Mrs Robinson (who has not been legally represented in these proceedings) does not take a different stance from that of Mr Challinor on this point or challenge SCC's right to claim against her as executrix of the will.
4. The claim arises out of the direct action which SCC undertook at the land at Within Lane between 7 and 12 April 2003, during which SCC arranged for a substantial volume of material, plant and other items to be removed from the site and disposed of. SCC contends that the total cost of the direct action was £243,685.12. The defendants deny liability on the ground that SCC were not entitled to take direct action; if they are unsuccessful in that defence, they challenge the costs claimed by SCC.
5. Mrs Robinson has represented herself in these proceedings, and has done so very well, with the assistance of Miss Dilmitis as a MacKenzie friend. I am grateful also to Mrs Preston and Mr Darby of Counsel (respectively, for SCC and Mr Challinor) for their assistance with this matter.

Evidence

6. I heard evidence from some members of the Development and Waste Management Business Unit of the Development Services Directorate of SCC, namely Ms Sheila Buxton (at material times, until she retired, County Planning Team Leader) Mr Paul Barnett (Audio Visual Officer), Mr Martyn Webb (now Principal Planning Enforcement Officer and formerly Principal Planning Regulation Officer) and Mr Douglas Walker (Regulation Team Manager). For the defendants, I heard evidence from Mr Challinor, Mrs Robinson and Ms Dilmitis.
7. Mrs Robinson was concerned prior to and at trial that SCC might not have disclosed all video footage. It seemed to me, having heard Mr Barnett's evidence, that there is no issue as to non-disclosure of video recordings.

Background.

8. I set out the background to this dispute. It includes some, but by no means all, of the history of planning applications and related matters. The site at Within Lane with which we are concerned is approximately two hectares in area. It is situated in a rural area, about two miles to the north east of Stafford. The site is on rising ground within the curtilage of a smallholding, with a cottage, called Woodside, set back from Within Lane, where Mr Challinor lived at the time of the direct action. Immediately beyond Woodside is a local beauty spot, Hopton Pools, to which the public have access along public rights of way and for fishing. Mr Challinor maintains the Hopton Pools and the adjacent woodland. The area fringes the registered battlefield site of Hopton Heath. However, the area is not predominantly agricultural. Woodside is situated adjacent to various buildings which form part of RAF Stafford. Nearby are two authorised sites for travellers. Beacon Farm, in the vicinity, has been given permission to use land as a waste transfer station.
9. Mr Challinor's evidence is that the land at Within Lane had been used as a contractors' and recycling depot for some 30-40 years prior to the direct action. Mr F J Challinor had purchased the land at Within Lane in 1949. He used the land for agriculture. In about 1967 Mr Challinor (the first defendant) began to operate a business from the land, initially as a sole trader and later through the medium of companies in which he has been a director or shareholder or with which he has been associated as a general trader. The businesses have been those of building or demolition contractor, handler of and dealer in recycled building materials and organic matter, dealer in or hirer of plant and equipment, waste disposal contractor, agricultural equipment dealer or hirer, plant, machinery and car breaker, and scrap metal dealer.
10. From about 1984 until about 1990, Mr Challinor operated through a company, Luke Green Ltd, of which he and his former wife were directors. That company went into liquidation in 1990. Between about 1994 and about 1998 BMEC Contracts Ltd traded from the land, in the business of recycling and trading of materials. Mr Challinor was company secretary, but not a director of that company. His former wife and his mother were directors. The company was dissolved in January 1999 and had ceased to trade some time prior to that. Between about 1995 and about 1999, other companies and businesses, with which Mr Challinor was not associated, conducted business on the site. In about 1999, a company called Stitchacre took over the site and business including the machinery, equipment and stock and was granted a lease of the site. Mr Challinor was not a director or shareholder of Stitchacre Limited. Due to ill health, Mr Challinor has not worked since about 1996.
11. SCC say that they first became aware in 1982 of building materials being taken to the Within Lane site. Mr Challinor was told that planning permission and a waste disposal licence would be required if he wanted to continue. On 30 September 1982 Mr Challinor submitted a planning application, for the improvement of poorly drained land by infill and restoration to agriculture. That application was refused on 16 March 1983, on the ground that the proposed development would detrimentally affect the character and amenity of the surrounding area. Mr Challinor submitted a revised application in December 1983. That was refused in June 1984.
12. On 2 November 1984 SCC served an enforcement notice, to take effect on 3 December 1984. That notice alleged breach of planning control by the deposit of waste. Mr Challinor then applied for a determination under section 53 TCPA. In March 1985 SCC decided to allow some development, subject to engineering operations required for use of the land for agriculture, and decided to withdraw the enforcement notice which had been served on 2 November 1984.
13. On 9 August 1985 the then Waste Regulation Authority of SCC issued a waste disposal licence.
14. In November 1986 an SCC report described the effect of land filling which had not been authorised by the March 1985 Section 53 determination: Mr Challinor's aim was said to be to infill across a valley on to adjacent land. SCC considered that that exceeded permitted use, and issued an enforcement notice dated 27 May 1988, to take effect on 8 July 1988. That enforcement notice alleged unauthorised excavation of land and deposition of material exceeding the area, volume and steepness of the final profile of deposit considered to be permitted development pursuant to SCC's March 1985 determination. It required, amongst other matters, the cessation of importation of waste material on to the site, the removal of any exposed biodegradable waste, the regrading of deposited material and the reseeding of the area with grass. No appeal was lodged against that notice.
15. In May 1992 Stafford Borough Council ("SBC") served an enforcement notice. That notice appears to have been withdrawn, possibly by reason of the issue, in 1994, of a certificate of lawful use.
16. On 15 June 1994, SBC issued a certificate of lawful existing use ("CLU"). This is an important document, and I refer to it in more detail later.
17. On 25 March 1996 an application was made to SCC, on behalf of BMEC Contracts Ltd, for a certificate of lawful use for the importation, storage, sorting, treating, processing and reclamation and recycling of soils and demolition materials. On 25 July 1996 SCC rejected that application. BMEC Contracts Ltd appealed against that rejection on 29 May 1997.
18. On 16 June 1997 SCC issued a further enforcement notice. Again, this is an important document and I deal with it in more detail later. I refer to this notice as the EN. On 7 July 1997, an appeal against the EN was lodged. Mr F J Challinor died on 4 August 1997. The appeal continued. Initially, the appeal was based on ground (d) in Section 174 (2) TCPA. Grounds (b) (c) (f) and (g) were added later but grounds (c) (d) (f) and (g) were later withdrawn, so that ultimately reliance was placed only on ground (b), namely that the matters alleged by the EN had not occurred in that there had been no change of use from agriculture to a waste transfer station. A public enquiry was held on 8 December 1998. The Planning Inspector issued his decision letter on 19 April 1999 dismissing the appeal. He did however make some amendment to the EN. I deal with these in more detail later.
19. On 23 July 2002 SCC obtained an injunction from HHJ Mitchell against Mr Challinor in the following terms:

"The defendant be forbidden whether by himself or by instructing, permitting or encouraging any other person, from using the land at Woodside ... for (sic) importing waste, handling, sorting, screening, storage, treatment and disposal or any of these of waste materials and soils until trial or further order".

20. On 4 September 2002, SCC issued an application for committal of Mr Challinor for alleged breaches of the injunction dated 23 July 2002. However, they did not proceed with that application.
21. On 20 March 2003 SCC's Planning Committee resolved to take action at Within Lane to enforce the terms of the EN. The direct action was taken between Monday 7 April and Saturday 12 April 2003.
22. On 24 March 2003, SCC applied again for Mr Challinor to be committed for alleged breaches of the injunction. The application for committal was adjourned, and was eventually heard by Mitting J in March 2004. On 30 March 2004, Mitting J varied the terms of the injunction which HHJ Mitchell had granted on 23 July 2002 by the addition of the following:

"PROVIDED that nothing in this Order shall prohibit within the area hatched black on the attached plan [the CLU Area] (a) activities which amount to the storage distribution or general trading of materials recovered from demolition and construction sites from (sic) recycling where such storage does not exceed four metres in height from the original ground level; or (b) activities that are necessary to permit the storage, distribution or general trading of such materials on and off the said area hatched black, but not to include any processing or sorting of the materials. For the avoidance of doubt, such materials need not have been sorted prior to them being brought onto the said area hatched black".

SCC withdrew their application for committal of Mr Challinor.

23. SCC applied to the court to vary the terms of the injunction so as to include the woodland adjoining the site at Within Lane. On 24 March 2004 Mitting J refused SCC's application to extend the injunction to the woodland.
24. There are Environment Agency exemptions registered in relation to the land at Within Lane. It would appear that the Agency have not made any complaint about operations at the site.
25. The claimant commenced these proceedings in 2004. On 16 December 2005 the claimant served a re-amended consolidated claim and, subsequently, a Scott Schedule which sets out all of the allegations of breaches of the EN on which the claimant relies in respect of both its money claim and its claim for an injunction against Mr Challinor.

CLU

26. The CLU was issued by SBC on 15 June 1994 under Section 191 TCPA. The land at Within Lane covered by the CLU ("the CLU Area") is hatched on the plan annexed to the CLU and forms part of the land that is affected by the EN. The CLU Area exists only as a line on a map, save for the access track; it is not (and never has been) physically separated from the rest of the land eg by fencing, or by any other marking on the land itself.
27. The lawful uses of the CLU Area are:

"1. The use of the land as a plant hire contractor's yard, including the repair, maintenance, storage and distribution of associated equipment and vehicles, such vehicles not exceeding ten in number.

2. The use of the land for the storage, distribution and general trading of material recovered from demolition and construction sites for recycling, such storage of materials not exceeding 4 metres in height".

EN

28. In the EN SCC stated that there had been a breach of planning control, namely, "without planning permission, the change of use of the land to use as a waste transfer station from agriculture". They noted that, in March 1985, they had granted a determination to allow waste tipping to complete restoration and approved a scheme for engineering operations requisite for the use of the land for agriculture. SCC contended that the levels authorised by that consent had been exceeded in terms of superficial area and height. Further, they contended that the land had been used for the deposit, sorting, screening and transfer of waste materials, and that that constituted use of the land as a waste transfer station.
29. Section 5 of the EN set out what SCC required the land owner to do, including:

"1. Cease importation of all waste on the land shown edged in red on the attached plan …. Cease the use of the handling, sorting, screening, storage, treatment and disposal, or any of these, of waste materials and soils on the land shown edged red on the attached plan reference WL2. (Time for Compliance: 1 day from the notice taking effect).

2. Remove from the land shown edged red on the attached plan reference WL2 all biodegradable and potential leachate forming waste. (Time for Compliance: 1 week from the notice taking effect).

3. Remove from the land shown edged red on the attached plan … all plant and machinery which are used for the processing, sorting, screening, treatment or any of these, of waste. (Time for Compliance: 2 weeks from the notice taking effect).

4. All operations involving soil replacement and cultivation treatment detailed in the steps below, to only be carried out when the full volume of soil involved is in a suitably dry soil moisture condition to minimise soil damage and to maximise the effects of the subsoiling (rooting) operations."

30. The EN went on to specify the way in which the land was to be regraded and treated, and detailed the seed to be sown to restore the land to open country. All work was to be carried out by 30 April 1998.
31. In his decision dated 19 April 1999, the Inspector directed that the EN be corrected by the deletion of the words "as a waste transfer station from agriculture" and the substitution therefore of the words "for the importation, handling, sorting, screening and storage of waste materials and the disposal of waste materials". Accordingly, paragraph 1 of the amended EN required the land owner to "cease importation of all waste ... cease the use of the handling, sorting, screening, storage, treatment and disposal, or any of these, of waste materials and soils ..." The Inspector also varied the EN to extend time for compliance (which had originally been 30 April 1998) until expiry of 11 months from the date of the notice taking effect.
32. In his letter, the Inspector expressed the opinion that the EN could not require cessation of the lawful use of the land for the storage of materials recovered for recycling up to a height of 4m. The Inspector interpreted the CLU as relating only to materials already recovered from waste, and not to the sorting, treatment or processing of waste materials. He suggested that the CLU should be clarified, provided this could be done without causing any injustice.

The Issues.

33. At the pre-trial review on 6 October 2006 the following issues were identified:

(1) Did Mr Challinor act as alleged in the Scott Schedule?

(2) Were Mr Challinor's actions (if proved) breaches of the EN?

(3) Were the activities alleged to breach the EN covered by the CLU?

(4) Was SCC entitled to take direct action?

(5) Were the costs incurred by SCC in taking direct action reasonable?

(6) Should the Section 187 B injunction be continued?

34. Mrs Robinson adds to that list the following, namely (7) as to the validity of the EN (whether it was properly issued) and (8) allegations that SCC breached her human rights.

Relevant Law

35. Section 55 TCPA defines "development" as "the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings, or other land". Section 55 (3) provides that, for the purposes of the section, "(b) the deposit of refuse or waste material on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if (i) the superficial area of the deposit is extended, or (ii) the height of the deposit is extended and exceeds the level of the land adjoining the site".
36. Section 172 TCPA permits a local planning authority to issue an enforcement notice and Section 173 sets out the formal requirements for such a notice. By section 174, a person on whom an enforcement notice has been served may appeal against it. Section 174 (2) sets out the grounds on which an appeal may be brought, including (b) that matters (stated in the enforcement notice) have not occurred. (This is the only ground on which the appeal against the EN was ultimately pursued.)
37. Section 178 (1) TCPA provides that where steps required by an enforcement notice are not taken within the period of compliance, the local planning authority "(a) may enter the land and take the steps, and (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so."
38. Section 187B TCPA permits a local planning authority, if it considers it "necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction", to apply for such an injunction. The court may grant such injunction as it thinks appropriate for the purpose of restraining the breach.
39. Section 191 TCPA provides that a person who wishes to ascertain (amongst other matters) whether any operations which have been carried out in, on, over or under land are lawful may apply to the local planning authority, which may issue a certificate. Section 191 (2) provides:

"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."

40. Section 191 (6) TCPA provides:

"The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed."

41. Section 285 (1) TCPA provides that "the validity of an enforcement notice shall not, except by way of an appeal …. be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."
42. Council Directive 75/442 of 15 July 1975 on Waste (75/442/EC) concerns waste disposal. Article 1 sets out various definitions, including that of "waste", which is defined as "any substance or object in the categories set out in Annex 1 which the holder discards or intends or is required to discard." "Holder" is defined as "the producer of the waste or the natural person who is in possession of it".
43. Article 3 requires member states to take appropriate measures to encourage "the recovery of waste by means of recycling, re-use or reclamation or any other process with a view to extracting secondary raw materials ...". Article 8 requires member states "to take necessary measures to ensure that any holder of waste has it handled by a private or public waste collector or by an undertaking which carries out the operations listed in Annex IIA or B or recovers or disposes of it himself in accordance with the provisions of this Directive". Articles 9 and 10 deal with the obtaining of a permit from a competent authority.
44. Annex 1 to the Directive deals with categories of waste. Annex II deals with disposal operations. Annex IIB lists 13 types of operation described as "recovery operations as they occur in practice". Item R13 is "storage of wastes pending any of the operations numbered R1 to R12 (excluding temporary storage, pending collection, on the site where it is produced)."
45. In Tombesi [1998] Env LR 59, the ECJ considered the definition of waste. At paragraph 52 the court said: "…the system of supervision and control established by directive 75/442, as amended, is intended to cover all objects and substances discarded by their owners, even if they have a commercial value and are collected on a commercial basis for recycling, reclamation or re-use."
46. In Badcock & another v Hertfordshire County Council [2003] 2 PLR 1 [2002] EWCA 1941, Potter LJ, referred to the need for the court, in criminal proceedings, to consider the meaning of "waste". He referred to the TCPA, to section 30 of the Control of Pollution Act 1974 and to section 75 of the Environmental Protection Act 1990. Potter LJ also referred to observations of Butler-Sloss LJ in Cheshire County Council v Armstrong's Transport (Wigan) Ltd [1995] Env LR 62, at p 65: "it has to be that which is disposed of, discarded, got rid of, not needed any more, by the person who is in the process of discarding it or disposing of it. It is to be of no further use to that person who has probably produced it but is certainly discarding the material." Potter LJ said: "That case made it clear that the notion of "discarded" material does not include material removed by a contractor from a site of which he has ownership or control specifically for the purpose of processing, and return and re-use in operations upon the contractor's site. It was a case of somewhat special facts in relation to concrete and rubble amenable to crushing and re-use for infill in the footings of new houses. It was not of course concerned with the wide variety of objects and materials of the type described above many of which would be unamenable to re-use in that way."
47. In Palin Granit Oy, [2002] 1 WLR 2644, the ECJ referred to Article 1 of Directive 75/442, in which waste is defined as "any substance or object in the categories set out in annex 1 (set out above) and said "the term 'discard' must be interpreted in the light of the aim of Directive 75/442. … It follows that the concept of waste cannot be interpreted restrictively.…The Commission considers that the operations of disposal and recovery of a substance or an object manifest an intention to 'discard' it within the meaning of Article 1…. However, the distinction between waste disposal or recovering operations and the treatment of other products is often difficult to discern…..There is no reason to hold that the provisions of Directive 75/442 which are intended to regulate the disposal or recovery of waste apply to goods, materials or raw materials which have an economic value as products regardless of any form of processing and which, as such, are subject to the legislation applicable to those products. However,…to interpret the concept of waste widely in order to limit its inherent risks and pollution, the reasoning applicable to by-products should be confined to situations in which the reuse of the goods, materials or raw materials is not a mere possibility but a certainty, without any further processing prior to reuse and as an integral part of the production process."
48. In Scottish Power Generation Ltd v Scottish Environment Protection Agency [2006] Env LR 872, Lord Reed reviewed Community legislation and case law of the ECJ, and said: "Since any material is capable of constituting waste within the meaning of Article 1(a) of Directive 75/442, in the event that it is discarded, whether it constitutes waste depends not on the nature of the material itself but on whether it is 'discarded' within the meaning of that provision. 'Discard', in this context, has a special meaning. It encompasses such uses of waste as are mentioned in Article 3(1)(b) and annexes II A and II B….It also includes the recycling of waste and the reclamation from it of substances which are intended for re-use. It follows that waste may be of economic value, and that its holder may be said to 'discard' it notwithstanding that he puts it to some commercially valuable use."
49. In Mayer Parry Recycling Ltd v Environment Agency [1999] Env LR 489, Carnwath J was concerned with the processing and recovery of scrap metal. In issue was the scope of the meaning of "recovery". Carnwath J was referred, amongst other authorities, to the Directive and to Tombesi. He said "in so far as the discarded materials do not require any recovery operation, as the Agency concedes, they are not treated as waste at all. In so far as they do require recovery operations, they remain waste until those recovery operations are complete.
50. Mrs Robinson has referred me to an extract from the Encyclopaedia of Planning Law and Practice, to which I refer below. She also refers me to a number of authorities. These relate mainly to matters which Mrs Robinson has raised at a late stage or on which, in my judgment, there is no issue, namely the validity of the EN, whether or not an enforcement notice should be issued, whether a flawed report to The Planning Committee misled the committee and caused it to make a decision which was ultra vires, and the circumstances in which the decision of a planning committee might be apt for judicial review. These largely concern matters which are not in issue (not having been pleaded) and are not relevant to the issues I must decide.

SCC's Case

51. SCC issued the EN (1) in order to restrain the continual breach of planning control (the land being in an attractive rural area and the unauthorised uses were detrimental to the visual amenity of the area), (2) because part of the land was an area of county biological interest, and (3) because the unauthorised uses were contrary to the relevant Development Plan. The EN (as amended by the Inspector) required remedial action to be taken by various specified dates. The import of waste and its handling and so on were to cease by 20 April 1999, and removal of all waste was to have been completed by 19 March 2000. However, Mr Challinor continued to import waste and to treat it on the land at Within Lane, and he further failed to remove waste as the EN had required. SCC were thus entitled to take direct action to clear the site.
52. SCC's case is that the CLU cannot make lawful that which is unlawful: Section 191 (2) (b) TCPA. Thus, the CLU cannot permit the import of waste on to the land or indeed any of the other activities prohibited by the EN.
53. SCC contend that all of the materials brought on to the land are "waste". They rely, for that proposition, on Directive 75/442, Tombesi, Badcock v Hertfordshire County Council, Palin Granit Oy and Scottish Power Generation Ltd v Scottish Environment Agency. Alternatively, if SCC fail to establish that all of the materials brought on to the land are "waste", then they contend that the waste and materials do not fall within the ambit of the CLU. Paragraph 2 of the CLU permits the "storage" of "materials recovered". This, SCC contend, does not permit the "deposit" of any materials. Further, materials must be "recovered". "Recovery" has a particular meaning, as the Directive and Mayer Parry Recycling indicate. The materials brought on to the land were not "recovered", as they could not be re-used without going through some further process or treatment eg. screening or sorting.

Mr Challinor's case

54. Mr Challinor's case is as follows. The CLU was issued prior to the EN. By section 196 (6) TCPA the lawfulness of the use for which the CLU was in force is to be conclusively presumed. The provisions of section 285 TCPA cannot operate to make a lawful act unlawful. Once the CLU was issued, it became a conclusive answer to any subsequent enforcement notice. Any use of or on the CLU Area which falls within the wording of the CLU cannot amount to a breach of the EN and thus could not justify direct action against that use on the CLU Area.
55. Mr Challinor contends that the activities of which SCC complain were permitted by and were carried out within the CLU Area. Any activities outside the CLU were of an agricultural nature. With regard to the bringing of materials on to the CLU Area and other storage and activities ancillary to such use, Mr Challinor relies upon judgment of Mitting J on 24 February 2004. Mitting J decided that the CLU impliedly included activities undertaken to permit the lawful uses to be carried out. It follows that the transport of relevant materials on to the CLU Area and their transport away from it are lawful. If that were not so, the permitted uses could never be carried out on the CLU Area because the material could never be brought on to it. Transporting materials on to and off the CLU Area together with their loading and unloading are not the only ancillary activities permitted by the CLU. Mitting J used the words "include" and "such as", so the ancillary activities are not limited to those which are specifically identified. That is also clear from the wording of the amended injunction. The storage of material on the CLU Area must include, as an ancillary activity, not only its loading and unloading but also its movement within the CLU Area.
56. Mr Challinor denies that the materials brought on to or stored on the land were waste soils and materials. The activities on the land and materials brought on to the land were expressly permitted by the CLU. That (Mr Challinor contends) permits the storage, distribution and general trading of materials recovered from demolition and construction sites for recycling. It permits storage of such materials up to 4 metres in height.
57. Mr Challinor's case is that practically all the material characterised as "waste" in the Scott Schedule is within the CLU category of "materials recovered from construction sites for recycling" whether pre-sorted or not, and some was obviously so. If the court finds that such material was on the CLU Area, or that it was in the course of transport to the CLU Area, then there was no breach of the EN.
58. The CLU permitted use of the CLU Area as a plant hire contractor's yard, including the storage of vehicles. Mr Challinor traded as Whitgreave Plant. On 18 December 1999, as both Whitgreave Plant and as executor of his father's estate, he let Whitgreave Manor and the Within Lane site to Stitchacre Ltd. As part of the agreement the plant and machinery were included in the lease to Stitchacre. The keeping of plant and machinery on the CLU Area for use by Stitchacre were lawful under the CLU.

Mrs Robinson's Case

59. Mrs Robinson adopts Mr Challinor's case, and makes the following points of her own.
60. The EN is a false instrument and invalid because it was not signed by Mr J R Gregory, the Corporate Director of SCC. There is no evidence to suggest that the EN was served on Mr F J Challinor or that he appealed the EN.
61. Since the death of Mr F J Challinor, SCC have never approached Mrs Robinson with any complaint regarding the land. They did not approach her prior to 7 April 2003, despite requests that they do so.
62. SCC waged a vendetta against Mr Challinor. The way in which SCC went about the direct action was unacceptable.
63. SCC were not entitled to remove plant and equipment from land outside the land covered by the EN, or from land within the CLU Area. They were not permitted to dispose of it, as they had done.
64. The very substantial volumes of soil removed from the Within Lane site during the direct action were deposited at other locations in breach of planning permission.

Discussion

65. It is interesting to note from correspondence the attitude which SCC itself has taken over the years to the land at Within Lane. Until shortly before the decision to take direct action, SCC themselves proceeded on the basis that it was permissible for the land owner to act in accordance with the CLU. For example, in a letter to Mr Challinor dated 17 November 1994, SCC referred to quantities of waste and bricks on the site, and said:

"It appears to me that whilst a Certificate of Lawful Use (CLU) was granted to you for operations including the storage and reclamation of building materials, it does not cover the area upon which waste is currently being stored. I would therefore be grateful if you would inform me in writing within 14 days of the timescale within which you intend to remove the waste material which has been deposited outside the area covered by the CLU."

At that stage, SCC were not concerned with materials on the CLU Area.

66. By letter dated 13 February 1995, SCC wrote to Mr Challinor to confirm matters discussed at a meeting on site, including the following:

"Whilst there is currently a valid Certificate of Lawful Use (CLU) which applies to part of the site, the material deposited round the barn is outside the area to which the CLU applies. The material must be removed from the site or transferred to the area to which the CLU applies by the 31 March 1995. In the event that this work is not completed, I will be left with no alternative but to report this matter to members. This may lead to legal action being taken against you.

I would wish to point out at this time that the operations set out in your CLU do not appear to cover the processing of waste materials. I would suggest, however, that you consult Stafford Borough Council to confirm this. If it is intended to install processing equipment such as screens it will be necessary to apply for a specific planning permission."

That position was repeated in SCC's letter to SBC dated 3 April 1995.

67. SCC's Director of Planning & Economic Development wrote to Mr Cash MP on 11 September 1995, referring to the CLU. He said:

"As you are aware the County Council's Waste Regulation Officer recently prosecuted Mr Challinor for causing the deposit of waste on unlicensed land outside the CLU area and also for failing to produce documentation when requested. Mr Challinor pleaded guilty to the three offences brought under the Control of Pollution Act 1974.

As a result of the CLU granted by the Borough Council, planning permission exists to use this land as a waste transfer station and I understand that an application is likely to be submitted to the County Waste Regulation Officer for a Waste Management Licence to carry out transfer activities on the site. Following a site meeting between one of my officers and Mrs Challinor, I understand that it is intended to install machinery on this site to process imported waste. I have written to the Director of Development Services at the Borough Council asking him to confirm whether the CLU permits the sorting, treatment or processing of waste material. Once I have his response I will be better able to assess the planning status of this site and decide whether it is appropriate for the County Planning Authority to take further action."

That indicates that SCC's Director of Planning considered at that stage that materials could be stored on the land whether or not they were to be recycled later.

68. By letter dated 28 September 1995 SBC informed SCC that they had taken legal advice and considered that the CLU did not cover the sorting, treatment or processing of waste materials on the site the subject of the certificate. In order to comply with the terms of the CLU any sorting of demolition materials must be carried out off site with such materials being delivered "ready sorted".
69. On 29 September SCC wrote to Councillor Dale, including the comment that SBC had issued the CLU "which allows storage and recycling of soils".
70. However, on 4 October 1995 SCC wrote to Mr Challinor, taking the view that the CLU did not cover the sorting, treatment and processing of waste materials on the site; to comply with the terms of the CLU, any sorting of demolition materials must be carried out off site with such materials being delivered ready sorted.
71. In their letter to SBC dated 3 November 1998 (ie after issue of the EN) SCC's position was that storage of recycled materials on the CLU Area was permitted, though subject to the height restriction. SBC staff visited the site on 29 October 1998 and SBC replied to SCC on 10 November 1998, stating: "the storage of materials is being carried out in accordance with the terms of the [CLU]."
72. It seems to me that the belief of any of the parties as to the validity of actions or as to whether any actions amount to a breach of the EN is irrelevant when considering which of the SCC or EN is to be applied and whether SCC were entitled to take the direct action, but is relevant to the question whether or not a permanent injunction should be granted.

Was the EN validly issued and served?

73. Mrs Robinson raises issues as to the validity of service of the EN on the ground that the EN was not appropriately signed. Mr Challinor does not take these points.
74. The name "J Gregory" appears on the EN, but it is not Mr Gregory's signature neither is it a facsimile of his signature. It was an officer of SCC who signed the document in Mr Gregory's name. Mr Walker confirmed that signature of the document on Mr Gregory's behalf and was authorised. I see no reason to doubt his evidence on that point, and conclude that the EN had been validly prepared.
75. The EN was served on Mr F J Challinor, Mr Challinor and other interested parties. Mr Webb personally posted the EN on the land. On 7 July 1997 an appeal was lodged by Mr F J Challinor. After his death the following month, the appeal was continued by Mr Challinor, as is clear from a letter sent by Mr Challinor to the Planning Inspectorate dated 3 December 1997. At no stage did Mr F J Challinor contend that the EN had not been served. Mr Challinor proceeded on the assumption that it had been served. I conclude that the EN was validly served. Further, the question of validity of the EN does not arise in circumstances where Mr F J Challinor had not challenged the validity of the notice but had proceeded to initiate an appeal against the EN.

Were the activities alleged in breach of the EN covered by the CLU?

76. I deal with this issue next, as the conclusion I reach impacts on the extent of SCC's entitlement to recover the cost of direct action. The principal legal issue is the interaction of the CLU and the EN. It is then necessary to consider construction of the wording of the CLU.
77. SCC's case is that they had concluded that the activities on site were unlawful. They had done so by their enforcement notice dated 27 May 1988 (issued prior to the issue of the CLU.) That enforcement notice stated that there had been breach of planning control by "the carrying out of operations consisting of the excavation of land and the deposition of material on land exceeding in area, volume and steepness of final profile the deposit held ... to be permitted ... ." It required steps to be taken including to "Cease importation of waste material to the site." The CLU cannot make lawful that which is unlawful.
78. The importation of waste is not identified as a breach in the 1988 notice. Cessation of importation of waste is simply one of the required steps. SCC contend that the notice should be construed widely; when construed as a whole, it is clear that importation of waste is not permitted. In my judgment, a document of the character of an enforcement notice, and which carries serious potential consequences if it is breached, should be construed strictly. The canons of construction appropriate for a commercial contract should not be applied to an enforcement notice. The 1988 notice does not make it clear that import of waste is unlawful. In my judgment, SCC are not entitled to rely on the 1988 notice to demonstrate that the import of waste on to the land was unlawful. I therefore accept Mr Challinor's primary case that what was being done on the land under the CLU was not in contravention of the 1988 enforcement notice.
79. In any event, Mr Challinor then sought a determination as to what he was entitled to do on the land, and the CLU was issued. It was issued pursuant to Section 191 (4) TCPA, which indicates that SBC were satisfied that the operations specified in the CLU were lawful. These comprise (1) use as a contractor's yard and (2) use for storage and so on of materials recovered from demolition. Section 191 (2) provides that such operations are lawful. Section 191 (6) (4) requires a local planning authority to issue a certificate of lawful use if satisfied of the lawfulness of the relevant operations. It follows that SBC could not have issued the CLU if it had considered the activities permitted by the CLU to have been unlawful. Section 191 (6) (2) provides that the lawfulness of any use, operations or other matter for which a certificate is in force is conclusively presumed. It is not open to SCC to go behind that and contend that operations pursuant to the CLU were not lawful because they breached the 1988 enforcement notice.
80. SCC rely on section 285 (1) TCPA which provides that the validity of an enforcement notice shall not be questioned, save by way of appeal. The appeal against the EN largely failed. In my judgment, however, that is not sufficient to override the conclusive nature of the CLU. Mr Darby and Mrs Robinson have referred me to the Encyclopaedia of Planning Law and Practice. The learned authors, at paragraph 191.05, say:

"Lawfulness is now equated with immunity from enforcement action, provided the use or operation does not contravene the requirements of an enforcement notice then in force. Thus, an existing enforcement notice will always prevail; but once a certificate has been granted, it is a conclusive answer to any enforcement notice subsequently issued."

81. I respectfully agree with the learned authors' analysis. I am not persuaded that there was breach of the 1988 enforcement notice. The lawfulness of the CLU is, by reason of section 191(6) TCPA, conclusive. Service of a subsequent enforcement notice cannot, in my judgment render unlawful those operations which SBC had considered lawful and which are deemed lawful by statute. Once the CLU had been issued, it became a conclusive answer to any subsequent enforcement notice. Mr Challinor was entitled to use the CLU Area within the scope of the CLU. It follows that any operations carried out on the CLU Area which fell within the scope of activity permitted by the CLU were not in breach of the EN. SCC were thus not entitled to undertake direct action in respect of operations carried out on the CLU Area and which fell within the scope of the CLU. I set out in the appendix to this judgment my conclusions in relation to each breach alleged in the Scott Schedule.
82. I turn next to the scope of the CLU. Mitting J amended the injunction to make clear what activities were permitted by the CLU and construed the CLU, in his judgment in March 2004. He considered the nature of the material that could be stored on, and distributed from, the CLU Area. The planning inspector had considered that the CLU covered only materials already recovered from waste. Mitting J disagreed. The following are relevant extracts from Mitting J's judgment:

"The use of the land permitted, in terms of the activities permitted, are those identified in the two paragraphs [in the CLU]. As far as paragraph 2 (which is the only relevant one) is concerned, those activities are and are only storage, distribution and general trading and any activity necessarily undertaken, so as to permit those activities to be carried on. Activities necessary to permit those activities to be carried out include the importation on tipper trucks or by any other permissible means of relevant materials and their loading up on to tipper trucks and appropriate vehicles for the process of removing them from the site. [Counsel for SCC] accepts that those activities are impliedly included.

Not included, plainly, is any form of processing of the relevant materials. That is to say screening them, treating them or conducting any other mechanical activity in relation to them, which alters their size, shape or properties.

A question of greater difficulty is whether the sorting, whether manually or by mechanical means, of materials stored and available for distribution or general trading on the site, is permitted. In my view, it is only permitted by the [CLU] if it is necessarily included in the three activities expressly permitted, as are importation and loading and unloading.

….the [CLU] does not include any sorting activity, manual or mechanical.

What is permitted is storage, distribution and general trading and activities necessarily incident to those such as importation, removal from site and loading and unloading on to and from vehicles, for the purpose of storage and distribution.

What materials may be stored or held for distribution for general trading? The [CLU] defines the materials as those recovered from demolition and construction sites, for recycling. [Counsel for SCC] contends that recovered in that context has a particular technical meaning and means retrieved from materials that are regarded as waste by the original owner and sorted into separate categories of material, for example, brick and timber, and before they are delivered to the site.

….. I do not agree with that interpretation. The composite phrase: 'Materials recovered from demolition and construction sites for recycling", necessarily imports the possibility of the storage, distribution and general trading of the materials for recycling. If the materials have already been recycled, then the words: 'For recycling' are otiose. It seems to me that recovered has, in this context, its general meaning and not any limited technical meaning. Its general meaning means obtained or retrieved from demolition and construction sites. That is not to say that only materials which have not been sorted may be imported onto this site. It means only that it is not necessary for materials to be lawfully stored on this site, that they be sorted beforehand, elsewhere…..

It is to be noted that the certificate is subject to a general limit on the height of storage. That height is plainly to be assessed by reference to the original height of the land, before any materials are stored upon it. There is not, in other words, the potential here for an ever increasing mound.

In my view, therefore, the [CLU] permits only storage, distribution, general trading and activities, necessarily incident to that of the kind which I have identified, of materials, whether pre-sorted or not, which have been recovered from demolition and construction sites. It is unhelpful to consider whether or not such materials amount technically to waste or not. The [CLU] was not issued in the context of waste management, but of planning control."

83. As Mitting J notes, paragraph (2) of the first schedule to the CLU refers to "materials recovered from demolition and construction sites". SCC's case is that "recovered" does not bear its usual meaning but has a meaning to be found in the European Directive. Mr Darby submits that the word "recovered" in the CLU should be construed in its ordinary English meaning. Had SBC intended to refer to recycled or recovered materials, they would have said so in that document. Mitting J dealt with that point, and I respectfully adopt his conclusion. That interpretation reflects the wording used in the document and its context. It follows from Mitting J's construction that the CLU impliedly included activities undertaken to permit the lawful uses to be carried out. Thus, the transport of relevant materials on to the CLU Area and their transport from it are lawful. If that were not so, then the permitted uses could never be carried out on the CLU Area because the material could never be brought on to it.
84. In any event, as Mr Darby submits, if the word "recovered" in the CLU is to bear a technical meaning, as Mrs Preston submits, the wording of the European Directive is not inconsistent with Mittting J's construction. The Directive requires member states to take steps to regulate activities concerning waste. Article 1 defines "recovery" as meaning any of the operations provided for in Annex II B. That Annex lists "recovery operations as they occur in practice". Item R 5 in Annex II B refers to recycling/reclamation of inorganic material. Item R 13 refers to "Storage of wastes pending any of the operations numbered R1 to R 12 (excluding temporary storage, pending collection, on the site where it is produced.") This does, therefore, appear to authorise storage of "recovered" materials and permits the material to be on the land whether or not it is to be recycled later. In summary, therefore, as Mr Darby submits, either (1) Mitting J was correct and "recovered" does not bear a technical meaning, or (2) if it does have a technical meaning derived from the Directive, then, in the context in which the word is used, what the CLU permitted was a use consistent with the Directive as set out in item R 13 of Annex II B.
85. Mr Darby goes on to submit that the transport of materials on to and off the CLU Area together with their loading and unloading are not the only ancillary activities permitted by the CLU. Mitting J used the words "include" and "such as", so that ancillary activities are not limited to those which he specifically identified. This is clear also from the wording of the amended injunction. The operation of storing material on the CLU Area must include as an ancillary activity not only its loading and unloading, but also its movement within the CLU Area. I accept that submission. Movement of materials on the CLU Area (except activity of the sort identified by Mitting J as outwith the scope of the CLU and provided that the height restriction was observed) was in my judgment lawful, being an activity necessary to permit the lawful operation to be carried out.
86. A consequence of SCC's interpretation of the scope of the CLU is that Mr Challinor could not bring on to the CLU Area any materials recovered from demolition and construction sites. That would be entirely inconsistent with the purpose of the CLU, namely to confirm the lawfulness of specified actions.
87. Mitting J delivered his judgment after the direct action had been taken. Nevertheless, in my judgment, his construction of the wording of the CLU is determinative of the defendants' rights from the date of issue of the CLU, and not simply from the date of his judgement.

Was SCC entitled to take direct action?

88. SCC were entitled to take direct action only in relation to activities within the EN area but outside the CLU Area and in relation to activities within the EN land and the CLU Area but outside the scope of the CLU.

Warrant of Entry

89. Mr Walker and Mr Webb obtained a warrant from Stafford Magistrates Court to permit SCC to enter the land at Within Lane for the purposes of taking direct action. Mr Challinor takes no point concerning the obtaining of the warrant. Mrs Robinson, however, takes issue with the way in which SCC dealt with this. The information laid for the purposes of obtaining that warrant was signed in the name of Mr J R Gregory, a senior officer of SCC, but in fact it was Mr Walker who signed using Mr Gregory's name. Mr Walker said that he had authority to do so. In my judgment there is no reason to doubt Mr Walker's evidence on this point or to suppose that the warrant was not validly applied for or granted.

The direct action

90. On 20 March 2003, the Planning Committee authorised the taking of direct action pursuant to section 178 TCPA. Mr Walker was responsible for co-ordinating the exercise.
91. SCC gave no warning to either Mr Challinor or Mrs Robinson of their intention to undertake direct action. Mr Walker had been concerned by an alleged incident when direct action had been taken in County Durham, and considered that relevant to the situation here. SCC considered that Mr Challinor was volatile and might react unpredictably. Mr Walker feared that, if Mr Challinor had advance warning, he would be obstructive and SCC staff would be in danger, so decided to plan the exercise in as much secrecy as he could achieve. As a result, Mr Walker did not approach local contractors (who might tip off Mr Challinor.)
92. Mr Walker and others held planning meetings with contractors who agreed to undertake the work and with the police. SCC arranged for their in-house photographer, Mr Barnett, to make a film of the direct action. As I explain below, the purpose was to make a film for documentary and training purposes, not to make a detailed record of the exercise. Accordingly, Mr Barnett recorded only some parts of planning meetings.
93. Early on the morning of 7 April 2003, a convoy of vehicles set off from SCC premises to travel to Within Lane. Mr Walker had decided that SCC employees should not use their own vehicles, so hired vehicles for use during the direct action.
94. Messrs Walker, Webb, Freeman and Barnett of SCC arrived at the site at 0715 hrs on 7 April 2003. They were accompanied by 8 police officers, two paramedics and various contractors. The paramedics were present as Mr Challinor, in his sixties, was in poor health. (In fact, he was admitted to hospital at the end of the week in which the direct action was taken.) Within Lane was closed. Mr Challinor lives in Woodside Cottage, immediately adjacent to the land comprised in the EN. The first he knew of SCC's intention was the arrival of the convoy that morning. Mrs Robinson learned about the exercise later that morning.
95. Messrs Walker, Webb and Freeman were present on site throughout the exercise, from 7 April 2003 until about midday on 12 April 2003. Mr Webb acted as Mr Walker's deputy. Ms Johnson was based at SCC's offices, engaged on matters concerning the direct action, during that period. Mr Barnett attended site on a couple of days.
96. SCC stopped vehicles entering the site to deposit materials and seized vehicles. SCC officers demanded written undertakings from drivers not to use the site again before vehicles were released. They had arranged for two contracting businesses, Higgins (Plant) Hire Ltd and Johnson's Aggregates Ltd, to remove material and Northover Ltd to remove plant and equipment, beginning at about 0830 on the Monday. The direct action was a very big exercise. A couple of cranes were used to move and lift plant and equipment. Some 39 HGVs were used to remove materials, plant and equipment. The contractors removed a number of loads of plant, machinery, timber, piping, trailers, arboricultural material and gas cylinders. Mr Walker estimates that a total of 12,000 cubic metres of material was removed. He describes the volume removed as equivalent to an area approximately the size of a football pitch covered to the depth of a two-storey building. At the peak of activity, one HGV was leaving site every minute. (The material was deposited on other sites. Mrs Robinson criticises SCC for their approach in relation to the disposal of the material removed from the site, but that is of little relevance to the issues here.)
97. Once the site had been cleared, to the extent possible within the time available, the site was graded then grass seeded.
98. Mr Walker decided what should be removed, making decisions on site as to what constituted "waste" as he saw it. If he designated something as waste, it was removed. Notwithstanding the numbers of SCC officers at site, no one kept a record of what was removed. So far as soil and similar are concerned, SCC are now dependant upon the records of contractors; they kept no record themselves. SCC have little idea what happened to items of plant and machinery removed from site: no inventory was maintained of items removed. SCC instructed Northover to store plant and equipment for a short period. Thereafter, it was to be sold unless proof of ownership was produced. Mr Challinor was informed that plant and equipment could be claimed back if proof of ownership was provided. None was. Northover took plant and equipment to Liverpool, and arranged from there to sell it. Mr Walker's evidence is that because of the condition of the items in question, it was difficult to sell. Only £14,000 was raised from the sale.
99. Electricity and water supplies were damaged during the direct action.
100. On 2 May 2003, Mr Walker wrote to a number of registered waste hauliers warning them not to import waste on to the site at Within Lane.
101. Mrs Robinson and Ms Dilmitis both criticise SCC for their approach in removing and disposing of machinery from site which was, they say, usable and valuable, and not waste. Ms Dilmitis was particularly sad to see a Massey backhoe removed and disposed of. Mrs Robinson described SCC's approach as being to treat the exercise as a closing down sale of the Within Lane site with no concern whatever as to what would happen to what was removed. Mr Walker condemned as scrap a large number of items, and these were removed. It is understandable that that approach has given rise to concern on the part of Mrs Robinson. Those concerns appear to be justified in relation to a number of items including, for example, six portacabins, and some buckets which had formed part of excavators. The portacabins looked to be in usable condition and, indeed, Mr Challinor's evidence was that one portacabin was the subject of an agreement for sale. So far as the buckets are concerned, while these look rusty in the photographs, one would expect that of equipment stored outside, but that is not sufficient to consider an item as scrap. It appears to me that the buckets were probably not scrap. Mrs Robinson pointed out that second hand buckets can command high prices. It seems to me that SCC should have taken much more care over the decisions as to which items to remove from the site and in dealing with their disposal.
102. SCC accept that a pile of blue engineering bricks was removed from the CLU Area, but suggested that other materials had been left on the site to compensate.
103. SCC's contractors removed a trailer or other vehicle which was at the entrance to the site, but not on the area covered by the EN. There is no good reason why that vehicle was taken away and disposed of. If - as was suggested - it was blocking the entrance, it could simply have been moved to a different location where it would not have been in the way. There was no excuse for permitting it to be removed altogether.
104. However, Mr Challinor does not contend that removal of such items was unlawful, and there is no evidence that Mrs Robinson had any beneficial interest in items which were removed.

Did Mr Challinor act as alleged in the Scott Schedule and were proved activities in breach of the EN?

105. For convenience, I set out in Annex 1 to this judgment my conclusion as to each item in the Scott Schedule. The contents of Annex 1 form part of this judgment. In summary, my conclusions are as follows. Of the total of 39 separate complaints up to and including the direct action, SCC have proved breach of the EN in respect of 18 items. (Of these 18, however, there are two pairs of substantially duplicated items.) SCC have failed to prove breach in relation to 9 items (though 2 of these are substantially duplicated). The remaining 12 are complaints which fail because the activity or operation complained of falls within the scope of the CLU. Following the direct action, out of a total of 29 complaints, SCC have proved breach of the EN in relation to 2 items, have failed to prove breach in relation to 8 items, and have failed to prove breach in relation to 19 items which fall within the scope of the CLU.

Human Rights issues

106. Mr Challinor does not take any human rights points.
107. Mrs Robinson contends that SCC have breached her human rights, and that SCC acted improperly with respect to their duties under the European Convention on Human Rights and, in particular, in breach of their duty to act in a way which was compatible with her rights pursuant to Article 1 of the First Protocol and Articles 6, 8 (1), 8 (2) and 14. SCC did not plead in response to Mrs Robinson's claims under this head, and Mrs Preston did not deal with them in her submissions.
108. Mrs Robinson contends that SCC's decision to take direct action in circumstances where her human rights were violated was irrational, disproportionate, unreasonable and incompatible with her Convention rights. SCC failed to consider questions of necessity and proportionality and the lawful use of the site. Mrs Robinson made further submissions in relation to these matters in closing, referring to the following matters.
109. SCC arranged the direct action in secret. SCC acted in breach of their own Enforcement Policy which required them "to take into account the comments of any victim ... to establish his or her views about the circumstances in which enforcement action is deemed appropriate." SCC knew that Mrs Robinson had an interest in the land, and she had asked to be consulted, but SCC failed to inform her what they intended to do and gave her no opportunity to be heard. Mrs Robinson had expressly asked SCC to keep her informed. In her letter to Mr Walker dated 4 March 2003, Mrs Robinson referred to their meetings and reminded Mr Walker that he had promised to put forward in writing various alternatives to avoid the two of them meeting "head to head in court". Mrs Robinson asked whether Mr Walker had any proposals to make. Mr Walker never replied to that letter. His explanation was that, by the time he received the letter (a week after its date) SCC had decided on direct action. Mrs Robinson wrote again, reminding Mr Walker that he was to suggest alternatives as a way forward. However, there was no response and, instead, SCC simply proceeded with the direct action without warning. It is not surprising that, having received no reply to her letters, Ms Robinson was angry that, so far as she was concerned, the next step was the direct action.
110. SCC's decision to plan in secrecy and give no warning of their intention led to Mr Challinor and Mrs Robinson receiving a nasty surprise when the direct action began. It also led to SCC's engaging the Staffordshire Police Tactical Response Unit to attend on the first morning of the direct action. The decision to proceed in this way resulted in increased expenditure on the part of SCC. It caused distress to Mrs Robinson. SCC justify their approach in part by referring to an alleged incident in County Durham. It is not clear to me, however, that any such incident is relevant to the circumstances here, and I find it difficult to accept that SCC's approach was necessary.
111. Mrs Robinson has, throughout, expressed her outrage at what she considers to have been poor treatment at the hands of SCC. She considers that she had been ignored and that SCC officials had treated her in "a patronising and contemptuous manner". The direct action had left her and Mr Challinor "shocked, stunned and powerless". She said that the effects of SCC's action on her family had been "horrendous". SCC had approached the direct action as if running a closing down of the whole site. As I have outlined earlier, SCC adopted a high-handed approach to the classification and removal of machinery and other items found on the site.
112. SCC initiated but did not pursue a prosecution of Mr Challinor. Mrs Robinson contends that SCC decided to take direct action because of their lack of success in and impatience with previous court proceedings, and that is disproportionate. She notes that the Environment Agency took no action. However, Mr Challinor does not contend that his human rights have been breached, and these matters have no direct relevance to Mrs Robinson.
113. Mrs Robinson contends that SCC discriminated against her, in breach of her rights under Article 14, because (1) one person on site was permitted to identify and remove items as the direct action was under way, but she and Mr Challinor were not afforded that opportunity; (2) SCC's approach has been inconsistent: a neighbour has been granted a waste transfer licence but SCC refused to permit the operations which Mr Challinor wished to carry out on the site; and (3) SCC themselves breached their own planning regulations in disposing of material from the site.
114. Mrs Robinson's submission that her rights under Article 8 and 14 and Article 1 of the first protocol are based on these matters. However, there is no evidence that Mrs Robinson had any beneficial interest in any of the plant and equipment removed from site. There is no evidence that SCC's actions or approach were discriminatory in any way. Whilst I understand Mrs Robinson's anger and concerns, in my judgment there has been no violation of these Articles. I also reject Mrs Robinson's submission that SCC's decision to take direct action was Wednesbury unreasonable: that concept and test are irrelevant in this case.
115. So far as Article 6 is concerned, Mrs Robinson does not complain that the trial itself or conduct of the case prior to trial were unfair or a breach of her Article 6 rights, but rather that SCC should not be pursuing her or Mr Challinor to recover their costs at all. In my judgment, there has been no breach of Mrs Robinson's rights pursuant to Article 6.

Were the costs incurred by SCC in taking direct action reasonable?

116. Section 178 TCPA permits SCC to recover only the expenses of the direct action which were reasonably incurred. Expenses incurred in taking steps which went beyond those which SCC were entitled to take cannot have been reasonably incurred. SCC are not, for example, entitled to the cost of removing materials, plant or machinery which were lawfully on the CLU Area.
117. Plainly, SCC incurred cost in taking the direct action. During the five and a half days of direct action, a very substantial volume of material, plant and equipment were removed. SCC have, however, approached quantum on a broad-brush basis. It seems to me that a major difficulty for SCC is that they have provided insufficient information to enable me to ascertain whether any particular cost related to clearing land covered by the EN and which fell outside the CLU Area. Mrs Preston submitted that the direct action was necessary in any event because of the failure to comply with the EN requirements. Even if none of the complaints was made out, it would be sufficient, she submits, that the land had not been reinstated as the EN required; that in itself would have justified the direct action. The only question would be whether SCC had demonstrated that they had incurred the cost of taking the direct action. Mr Darby submits that the only consequence is that the whole of SCC's money claim must fail.
118. In my judgment, SCC were entitled to take direct action to enforce the EN and were entitled to reinstate the EN land. They were not, however, entitled to take action in relation to operations outside the scope of the EN eg operations within the scope of the CLU. But SCC are unable to distinguish the cost of direct action in relation to the complaints which demonstrate breach of the EN from the cost incurred in undertaking work which did not fall within the scope of the EN. It would in my judgment be artificial, and a mathematical nonsense, to try to assess a proportion of cost incurred by reference to the numbers of breaches of the EN proved as against those not proved. This is not a case where the vast majority of complaints have been proved, with the consequence that the court would have considered it appropriate to treat unproved complaints as de minimis, or to make a modest deduction from overall cost to reflect the likely cost of work on the CLU Area. Information here is lacking. I have no information to enable me to assess, for example, the volume of material removed from the EN area alone. I am therefore driven to the conclusion that SCC have failed to prove their entitlement to recover the cost of the direct action.
119. I nevertheless deal with the detail of the quantum claim in case this assists. I set out below the total cost which SCC would have been entitled to recover had they been entitled to act as they did ie removing and disposing of material and so on from much of the Within Lane site.
120. SCC claim to have incurred cost totalling £243,685.12, being £212,134.52 less £14,000 from the sale of machinery, plus £45,550.60 establishment cost. These sums are substantially greater than the estimates put to the Planning Committee before the direct action began. The original estimate was a total cost of £63,000. In part, the increase in cost arises because a much larger volume of material was actually moved than had been forecast. In other respects, however, the increase from the estimate has not been explained.
121. When SCC demanded payment, Mrs Robinson asked for details including breakdown of establishment costs and an itemised account to explain the claim for security and police presence, but SCC initially refused to provide details. Eventually, however, SCC provided the defendants with a substantial volume of documents supporting some heads of claim. For SCC, Mr Walker gave evidence on the quantum aspects of the claim. I deal as follows with each of the heads of claim.

Operational costs:

122. Waste tipping: £153,424.58 claimed: This is the sum said by SCC to have been incurred in removing waste from the site. The defendants sought to challenge the sum claimed on two bases, the first that there is uncertainty as to the volume of material removed and the second on the rate charged.
123. In their initial report to the Planning Committee Mr Walker and his colleagues estimated that it would be necessary to remove 5,000 cu m of material; at a rate of £9.50 per cu m, ie a total estimated cost of £47,500. SCC claim now to have removed some 12,000 cu m of material at an actual cost of £153,424, ie a unit cost of £12.78 per cu m.
124. I deal first with the volume of material removed from Within Lane site. SCC officers did not record what left the site. Only one receiving site measured the volume of material it received from the Within Lane site. In an email which he sent to a number of county councils across the country shortly after the direct action, Mr Walker announced that SCC had just completed a direct action operation. He noted that they had removed 27 loads of plant, machinery and portacabins and 10,000 m³ of mixed waste. He added that SCC were about to take action to recover the costs "of about £150,000" and he sought advice from any other county council which had undertaken something on such a scale. Mr Walker now describes as approximate the figure of 10,000 cu m, and accepts that the 27 loads of machinery referred to included the transport by SCC contractors of equipment on to and off the site to carry out the direct action. The figure of 12,000 cu m is plainly broad brush rather than precise. However, information concerning the volume claimed for was made available to the defendants. SCC removed substantially more material than they had anticipated. In my judgment there is no reason to conclude that the volume removed was materially lower than that figure. So far as the rate is concerned, a difficulty is that SCC did not invite tenders for this work. This arose partly as a consequence of deciding to proceed in secrecy and not to use local contractors. However, no good explanation has been given as to why SCC should be entitled to the cost of moving material at the rate of £12.78 rather than at the estimated rate of £9.50. I would allow only the lower rate of £9.50 per cum. Accordingly, expenses reasonably incurred under this head would total £114,000, ie 12,000 cu m @ £9.50.
125. Private security guards: SCC claim £15,140 being the cost of employing private security guards. SCC engaged Castlebank Securities Ltd, a security company, to provide six guards during the direct action. SCC sought permission (pursuant to Regulation of Investigatory Powers Act 2000) to undertake surveillance on Mr Challinor for the purpose of preventing or detecting crime or of preventing disorder, and in the economic well being of the UK (including protection of the environment). SCC contended that they feared that Mr Challinor would try to prevent the direct action taking place and that there would be no way of knowing whether such steps would have been taken unless his whereabouts were known, so that Mr Challinor should therefore be followed by security guards when he left the site. Security guards did indeed follow Mr Challinor whenever he left the site. Complaint was made immediately about this surveillance. After the first day, the police indicated that such surveillance should be discontinued, and it was. SCC nevertheless paid Castlebank for the whole of the five and a half days of direct action. In my judgment, the cost of security guards tailing Mr Challinor off site is not a reasonable cost incurred pursuant to section 178 TCPA.
126. SCC are, however, entitled to claim the cost of guarding plant and equipment which had been brought on to the site for the purposes of the direct action. Mr Walker explained that some machines were kept on site overnight, stored in a flood-lit compound. Mr Walker was unable to explain why it would be necessary to maintain more than two guards overnight to protect that equipment, save that the total of six were needed for "health and safety" reasons. I conclude that it would not be reasonable to allow the claimant to recover the cost of more than two security guards. At most, therefore, SCC would be entitled to recover the cost of two security guards for 5 days and nights. It might be said that information is so insufficient as to lead the court to conclude that no award of damages should be made. In my judgment, the better approach on the available evidence is to assess on a pro rata basis a cost for security guards to look after contractors' plant and equipment during the five days and nights. I put that at £4,588.
127. Police: SCC claim £1,152.53, being the cost of a police presence. The Staffordshire Constabulary charged SCC £1,152.53 being the overtime charge for officers from their Tactical Response Team. Some officers attended planning meetings prior to the direct action. A number were on duty at the site on the first day of the direct action, and some were on duty there during the rest of that week. In total, eight officers were deployed, as against the four envisaged at the planning stage. There is no evidence to explain why eight officers needed to attend or when they attended. SCC contend that the police advised that such a presence was necessary, but that cannot be understood without knowing what information SCC gave to the police. One wonders whether such a police presence would have been needed at all if SCC had not chosen to operate in secrecy and arrive unannounced. There is no breakdown of the sum which SCC paid. Mr Challinor challenges the figure on the ground that there had been no prior agreement as to the cost and no checking when the invoice was received by SCC to ensure that a proper sum was being paid. The police charged only for overtime but SCC did not know what overtime was said to have been worked. I find it surprising that SCC accepted at face value the invoice submitted by the police. I am not persuaded that the cost of policing was a reasonable cost incurred in undertaking the direct action, or that SCC have proved, on balance of probabilities, what such reasonable cost would be.
128. Equipment hire: SCC claim £19, 735.94. This includes £5,108 in respect of crane hire. In fact the larger, 75 ton crane, was used for only two days not three as claimed and the 35 ton crane for only one day. Accordingly, the sum claimed should be reduced by £2,250. SCC also claim the cost of car hire of £210. There is no basis for claiming that sum. The total expenses reasonably incurred under this head would therefore be £14,417.94.
129. Disposal cost: SCC claim £5,530, being the cost of removing trailers, a truck, scrap and portacabins. This sum includes £3,510 for removal of portacabins. There was no requirement in the EN that these be removed. The Scott Schedule listed complaints on which SCC relied, and there was no complaint in relation to portacabins. There was no justification for their removal or for SCC's claiming the cost of removal. Expenses reasonably incurred under this head would therefore total £2,020.
130. Scrap disposal: SCC claim £12,730.05 being the cost of heavy haulage and storage. That sum includes £2,250 in respect of removal of portacabins. For reasons given above, that sum is not recoverable. Expenses reasonably incurred under this head would therefore total £10,480.
131. Restoration: SCC claim £2,500. Mrs Robinson complains that the work of grading and seeding was done badly (eg large items such as a bath were found underneath the reseeded areas.) The photographs showed that generally restoration work had been undertaken, and the areas from which material and equipment had been removed had (with the exception of an area which could not be cleared because of the presence of overhead power lines) been graded and seeded. In my judgment, expenses reasonably incurred of £2,500 would have been awarded under this head.
132. Miscellaneous: SCC claim £1,921.42. Mrs Robinson challenges a number of items claimed for. I accept her submission that subsistence costs totalling £355 cannot properly be claimed for the defendants. Nor am I persuaded that the defendants should be expected to meet the cost of hard hats and vests - equipment which SCC must surely have had anyway. Costs relating to photography, totalling £168.43, must be deducted. Under this head SCC also claim £231.82 in relation to Castlebank Security. There is no indication what this sum relates to. At most, therefore, under this head, expenses reasonably incurred would total £1,030.
133. SCC arranged for 3 cars to be hired for use by SCC employees so that they did not have to use their own cars to travel to Within Lane. The reason was said to be fear that Mr Challinor would come to recognise registration number plates of members of staff.. In my judgment, the cost of such car hire is not a reasonable cost incurred in taking direct action.

Establishment costs.

134. Mr Walker prepared a breakdown of what he estimated to have been time spent by each of 14 officers of SCC (including himself) on activities related to the direct action. None of the officers kept time sheets, (except those in the legal department, and those time sheets have not been disclosed.) There is no evidence from any of the persons for whom time is claimed to support Mr Walker's estimate. Long after the event, Mr Walker looked at the flexi-time records for each of the officers concerned and prepared the breakdown from these. No records or notes have been disclosed to explain how time was spent. Mr Walker accepted that his figures were a rough estimation, and amounted to guesses more than estimates. There is no evidence as to how the hourly rates claimed are calculated.
135. I approach with great caution each element of the claim for establishment costs:
136. County, Principal and Senior Planning Regulation Officers (Messrs Walker, Webb, Freeman and Ms Johnson) a total cost of £30,330 representing a total of 564 hours claimed: There is likely to have been some duplication of time between officials, but the extent of that cannot be understood from the limited evidence available. SCC officials spent much time locating and contacting contractors outside the area, as they wanted to maintain secrecy in relation to the operation. For reasons I have given, I am not persuaded that secrecy was necessary. The cost of any extra over cost of engaging contractors outside the local area would not be recoverable, but there is no information to understand how much unnecessary time was spent on that activity. It is clear that Mr Walker and Mr Webb spent time on the video recording and promotional film which Mr Barnett produced (see below). None of the cost of that time is recoverable, for the reasons I give below. Mr Walker spent time after the direct action in speaking to contractors to learn from them what had occurred during direct action so that any mistakes might not be repeated if a similar exercise was to be carried out thereafter. None of the cost of such debriefing falls within the scope of the cost which SCC would be entitled to recover pursuant to section 178 TCPA. I am not persuaded that the cost of officers' time spent reporting to the Planning Committee following the direct action is a reasonable cost of taking the direct action and thus recoverable from the defendants.
137. Messrs Walker, Webb and Freeman were on site during the five and half days of the direct action. Given the scale of the operation, the reasonable cost of that time would fall within the scope of section 178 TCPA. However, even if SCC had provided evidence to substantiate the hourly rates claimed, a real difficulty is that the lack of detail and evidence render it impossible for me to calculate what sum can fairly be attributed to the direct action. In summary, the whole of the claim for officers' time would fail.
138. Senior Solicitor and Legal Executive, a total of £10,050 representing 120 hours claimed: Mr Walker confirmed that legally qualified staff maintained records of time spent but none has been disclosed. There is no explanation of how time was spent in connection with the direct action. SCC have failed to prove this head of claim.
139. Audio Video Manager, a cost of £3,000 claimed representing 60 hours: Mr Walker arranged for much of the direct action exercise, including the planning meetings, to be video recorded. Mr Barnett subsequently prepared a DVD called "Operation Dispose". Mr Barnett filmed parts of the meeting with contractors, during the week before the direct action (not for the purpose of making a record of the meeting but to obtain background material for his production.) He had spent about 30 minutes at Hopton Pools (not within the EN) and about 24 hours on editing the footage he had taken of the entire operation. After the direct action, he spent about 2 hours in recording interviews with Mr Walker and Mr Hilton. Mr Walker's breakdown of time spent shows Mr Barnett having spent 16 hours processing film, but Mr Barnett explained that he had not undertaken any processing. Following the direct action, Mr Barnett took a video recording of the site from the air. The cost of arranging this through a commercial provider was high. So, in order to film from the air, Mr Barnett joined a local gliding club and took a flying lesson, for which SCC claim the cost of Mr Barnett's time. As Mr Barnett explained, he spent only a very short time taking any footage during that flight (indeed, only about 10 seconds) and for the remainder of the time he was enjoying his lesson. Further, as Mr Barnett very fairly acknowledged, the footage taken from the glider is of little or no use at all. It is simply unacceptable for SCC to suggest that it is appropriate to seek to recover the cost of that episode as a reasonable cost incurred in taking direct action.
140. Mr Barnett confirmed that his role, including filming the meetings with contractors, attending site and making the photographic record, were all undertaken with a view to producing what became "Operation Dispose". The main purpose was to prepare a documentary to be used as a promotional video and for training purposes, for presentations to enforcement officers in other local authorities and to show to members of SCC. In my judgment, given the purpose for which the photography was undertaken, none of the cost of the time spent on photography or on preparation of Operation Dispose falls within the scope of the cost which section 178 TCPA permits SCC to recover. Thus, none of Mr Barnett's time is recoverable.
141. Mr Walker and Mr Hilton were interviewed for that film, and some of Mr Walker's time now claimed was time spent on that activity. Mr Barnett described Mr Webb's role as that of script consultant for "Operation Dispose", and thought that Mr Webb had spent several hours on this activity, but was unable to give any more precise indication. So little detail has been given of the make up of the sums claimed for officers' time that it is not possible for me to attempt to work out how much of Mr Walker's and Mr Webb's time should be deducted to reflect their time spent in relation to the film.
142. Finance section, a total of £750 claimed, representing 15 hours spent: There is no explanation at all as to who spent this time or on what activity. It may be that this is an estimate of time spent by those responsible for checking invoices rendered in relation to the direct action, but SCC have failed to prove this head of claim.
143. Public Relations Officers, £200 representing a total of 5 hours claimed: I do not follow Mr Walker's explanation that it would not have been possible to undertake the direct action without a PR brief. He said also that PROs were involved because he was not permitted to speak to the press. Preparation of a PR brief and talking to the press simply cannot be a reasonable cost within the scope of section 178 TCPA. This head of claim fails.
144. Personal Assistant, £700 representing 20 hours of time spent: There is no explanation for this item. This head of claim fails.
145. Stationery, £25 claimed: Completely unsubstantiated. This head of claim fails.
146. Safety High Visibility overalls, £152 claimed: completely unsubstantiated. In any event, SCC must surely have issued such equipment to its staff to carry out their day-to-day duties. There is no evidence to explain why the defendants should fund the cost of such equipment. There is no explanation of the apparent duplication with the sum claimed under "Miscellaneous" costs (see above.) This head of claim fails.
147. Telephone calls: £100: plainly a completely unsubstantiated guess. This head of claim fails.
148. Administration costs: £243.60 claimed, said to represent 8% of £3,044.96. Unexplained and unsubstantiated. This head of claim fails.
149. In summary, had SCC been entitled to recover the cost of taking direct action in relation to the whole of the Within Lane site, I should have concluded that they were entitled to expenses reasonably incurred totalling £179,035.94. However, for reasons set out above, SCC's money claim must fail.

Injunction

150. SCC claim a permanent injunction against Mr Challinor. Their case is that the unauthorised activities of disposal of waste have seriously injured the amenity of the area through the visual impact, the movement of heavy commercial vehicles delivering waste at all hours of the day and the noise emitted by large construction machines. Since the direct action operation was completed in April 2003, the unauthorised activities at the site have once again increased, with waste mounds of having increased in both height and lateral extent. There is, therefore, an environmental and public interest element to prevent the unauthorised activities of disposal of waste on the site, which seriously injure the amenity of the area. SCC complain that Mr Challinor simply denies all allegations of breach of the EN, and has not offered any undertaking in relation to future use of the site to reflect the legitimate requirements of the EN.
151. I have set out, in paragraph 105 above, the summary of my conclusions in relation to Scott Schedule complaints about operations and activities which post date the direct action. It can be seen that SCC have substantially failed to prove breach of the EN during this period.
152. Mr Walker prepared a statement describing a number of complaints which post date the matters referred to in the Scott Schedule. He visited the site in February, March, April and June 2006. On most occasions he was accompanied by Mr Webb. On one occasion he was accompanied by another colleague from SCC. Photographs were taken during those visits, and (as on some other occasions) a GPS survey was undertaken. Mr Walker details the items he saw deposited on the land on each of his visits. I set out in the introduction to appendix 1 below an explanation as to how I have approached the question whether a complaint fell within or outwith the scope of the CLU, and adopt that approach in relation to recent complaints. In summary, I conclude as follows:
153. 2 February 2006: The materials complained of had mostly been recovered from construction or demolition sites. Many, though not all were capable of re-use without further treatment or sorting. Most, though not all, were on CLU Area and most, though not all, fell within the scope of the CLU. One of the complaints relates to crash barriers which were at the entrance to the site, and not on EN land. Another complaint relates to an air compressor which, Mr Walker declared, was beyond the end of its economic life; there was no basis for that assertion. Conclude: breach of EN not proved.
154. 2 March 2006: Some previously tipped materials had been removed. Complaint is made of ductile steel pipes which had been deposited; these were capable of re-use. A pile of wood was adjacent to the steel-framed building. Conclude: breach of EN not proved.
155. 5 April 2006: Mr Walker saw Mr Challinor on a bulldozer working a pile of top soil. There is no evidence as to the provenance of this soil. He contends that this was "waste" Conclude: Breach of EN proved.
156. 7 June 2006: an area containing brick and other construction materials had been graded and blinded over with a thin layer of soil. Mr Walker observed a truck arrive with the intention of tipping green waste on to the site. The driver told Mr Walker that he was authorised to bring the material on to the site. I have no evidence from that driver, but the inference must be that it was known that the site could be used for such tipping. As Mr Walker said, fly tipping is not usually associated with a site of this nature beside a cottage; fly tipping is usually opportunistic. Conclude: breach of EN not proved.
157. 14 June 2006: Mr Walker observed that heaps visible the previous week had been levelled. A JCB excavator was on site, and I accept that the vehicle had probably been used to move and work the materials. Further green waste had been deposited, on the CLU Area, and further wood chip had been deposited. Mr Walker complains about the presence near the steel-framed building of a trailer loaded with household items. He concluded that the trailer had been abandoned, but there can be no justification for such conclusion. He also refers to a deposit of broken paving slabs, brick, concrete posts, tile and wood. It is unlikely that such material could have been re-used without further treatment or sorting. Conclude: some breaches of EN proved, though not all complaints were valid. Mr Walker also refers to a number of abandoned cars on the site. It is likely that the cars photographed at that time had been abandoned. That would amount to a breach of the EN. I note that SCC have never challenged the defendants with respect to the presence of abandoned cars.
158. Mr Walker visited the site again on 18 September 2006. On that occasion he observed soils which had been deposited close to the access to the site from Within Lane, but these were outside the EN area. Mr Walker saw a steel narrow boat adjacent to the steel-framed agricultural building. I accept that this had been taken to the site for storage pending its renovation. Narrow boat enthusiasts would be surprised to hear Mr Walker's description of the boat as being near the end of its life. Piles of soils, brick and hardcore, of stone, bricks and wood, of sand and of bio-degradable material were seen; much of these were on the CLU Area. Mr Walker and Mr Challinor met and discussed matters briefly. As on previous occasions, Mr Challinor claimed that the CLU entitled him to bring such materials on to the site, and Walker maintained that the EN prohibited this. Conclude: no breach of EN proved.
159. On 26 September 2006 Mr Walker again went to the site. He observed further materials, similar to those which he had observed earlier that month and, again, much of these were on the CLU Area. Conclude: Breach of EN not proved.
160. In South Bucks District Council v Porter [2003] 2 AC 558, the House of Lords considered the circumstances in which a permanent injunction pursuant to section 187B TCPA might be granted and the factors which the court should take into account. That has been followed in South Cambridgeshire DC v Gammell [2006] 1 WLR 658 and Davis v Tonbridge and Malling Borough Council [2004] EWCA Civ 194. The court should have regard to all the circumstances of the case and grant an injunction only where it is just and proportionate to do so taking account, amongst other matters, of the rights of the person against whom injunctive relief is sought and whether it is relief with which that person can and reasonably ought to comply. The court should look at the planning merits of the matter and accord respect to the local planning authority's conclusions
161. In the light of the authorities on the meaning of "waste" (especially Tombesi and Scottish Power) some of the activities of which SCC complain would, if not undertaken on the CLU Area, be breaches of the EN. Since April 2004, almost half of the restored site has reverted to what SCC consider is the unlawful use in existence prior to the direct action undertaken in April 2003, but, as Mr Webb confirmed, almost all of the materials (except a mound of wood) deposited on site since that date were deposited on the CLU Area. It is clear that SCC have demonstrated only very limited breaches of the EN since the direct action.
162. Mrs Preston submits that Mr Challinor has shown a general disregard for planning control and has been in deliberate breach of the EN over a number of years. There is no reason to suppose that he will not continue to breach the EN unless restrained by an injunction. In my judgment, however, that is unduly harsh. Mr Challinor has made some attempt to comply with planning requirements eg by applying for a CLU. Further, as the detailed consideration of the complaints in the Scott Schedule and the conclusions I reach as to recent complaints show, Mr Challinor has, since the direct action, largely kept within the boundaries established by Mitting J for use of the CLU Area. This is not a case where there has been flagrant and prolonged defiance by Mr Challinor of planning controls.
163. Mrs Preston points out that Mr Challinor has not suggested that he will suffer any hardship if an injunction is granted.
164. SCC's own position must be taken into account when deciding whether or not an injunction should be granted. SCC have not persuaded me that Mr Challinor has been in significant breach of the EN. Further, as can be seen from the correspondence (some of which I have quoted above) SCC themselves initially considered that the CLU permitted operations which they now contend were unlawful. Indeed, at one stage SCC had expressly required Mr Challinor to move materials to the CLU Area.
165. I also note that any injunction would apply only to the EN land excluding the CLU Area.
166. I conclude, having balanced these factors, that it would not be just and proportionate to grant a permanent injunction.

Conclusion

167. I conclude that SCC's claim for payment of costs incurred in relation to the direct action fails.
168. I conclude that SCC are not entitled to an injunction to restrain Mr Challinor from breaches of the EN.

Frances Kirkham, 23 February 2007

Annex 1 Scott Schedule

169. The parties prepared a Scott Schedule, comprising 68 items. Items 1-37 predate the direct action, and items 38 and 39 are dated 7 and 12 April 2003 (i.e. during the direct action). SCC relies on these in support of its claim to recover the cost of the direct action. The remaining items (40-68) post date the direct action, and are relied on by SCC in support of its claim for a permanent injunction against Mr Challinor.
170. At trial, I heard evidence in relation to each item in the schedule, and each of the parties has prepared a useful written submission on these complaints. The complaints go back a long time. In relation to many of the items, the court is heavily reliant on photographs and complaints made at the time in correspondence with Mr Challinor. In a number of cases, the complaint now made is inconsistent with the complaint recorded in the contemporaneous document. In some cases, witnesses, especially Ms Buxton, had good recall.
171. Over many years prior to April 2003, Mrs Buxton, Mr Webb, Mr Walker and other employees of SCC had observed the Within Lane site regularly. On a few occasions, they went onto the land at Within Lane. On other occasions they made their observations from just outside the site. Ms Buxton, Mr Webb and Mr Walker and both defendants gave evidence on various items in the Scott Schedule. Ms Dilmitis also gave some evidence on the Scott Schedule complaints but most of her evidence on these items was not of her direct knowledge of matters.
172. Ms Buxton worked for SCC from 1961, and retired in 2002. She was actively involved in investigating activity at Within Lane from about 1986 or 1987. Ms Buxton explained that SCC had not been consulted about the CLU, and she had not been aware of it until, probably, the time of the appeal in December 1998. Thereafter, when she went to site to investigate breaches of planning control, she looked at the boundaries of the CLU Area. At no stage did Ms Buxton take with her a plan which delineated the CLU Area. Further, as Ms Buxton explained, the topography of the land changed over time as material was imported and moved. However, I accept her evidence that when she returned to her office, or when she wrote letters or a report or prepared for an appeal hearing, she checked against the CLU to see whether what she had photographed and observed was inside or outside the CLU Area. So far as material to this dispute, Ms Buxton made observations on 6 October and 29 November 1999, 15 February and 5 June 2000, 11 May, 26 and 27 July, 2 August and 20 September 2001. On some of those occasions she visited the Within Lane site itself; on others, she made observations from the road. Ms Buxton took photographs on a number of those visits, or asked a colleague to take photographs. She made detailed reference to a helpful plan showing the points at which photographs had been taken. I found Ms Buxton to have been straightforward in her evidence and I have confidence in it.
173. Mr Webb claimed to be able to identify the CLU Area fairly accurately, to within a few metres, as he had visited the site so many times and examined the plans. He was not concerned that, when inspecting the site and during the direct action, he did not have with him any diagram or plan showing the location of the CLU Area, because he took the view that the CLU was not relevant to the EN or to waste disposal. He acknowledged that the CLU Area does not follow natural detailing (eg hedges.) I had less confidence in Mr Webb's recollection than in that of Ms Buxton. I found Mr Walker anxious to make SCC's case and his evidence was coloured by the rigid view he had taken of SCC's entitlement to act as it did. I had less confidence in Mr Challinor's evidence; at times he denied what seemed to me to be plain evidence.
174. SCC's intention had been to mark out the area to be dealt with during the direct action, but this was not done. Whilst I accept that Ms Buxton had a good broad understanding of the location of the CLU Area., I am not confident that other SCC officers carried in their memories the precise location of the CLU Area, to the extent that they could be confident that an operation or event occurred within or outwith the CLU Area, and particularly when an operation was close to the border. This is particularly so in the later period, when SCC considered that the CLU was of little importance.
175. I also note that the Planning Inspector in his report of 19 April 1999 said that he had heard no evidence to suggest that there was an on-going use of the land for plant hire at the time the EN was issued. When he inspected, such plant as he saw appeared to have been in use for the processing of the materials which he had seen there. This tends to support the evidence of witnesses and from photographs. In the light of all available evidence, I conclude that some of the plant and equipment on site was probably being used to process materials, and was not there for storage.
176. I adopt the construction of the CLU set out in Mitting J's judgment. I conclude (on the very limited evidence available) that wood chips (which had been chipped prior to being brought on to the site) fell within the scope of paragraph (2) of the CLU, namely "material recovered from demolition and construction sites for recycling". I accept that wood chips could be used eg for agricultural purposes. So far as arboricultural material is concerned, I conclude, (again, on very limited evidence) that logs, which could be used domestically for burning, do fall within the scope of the CLU but that other arboricultural material probably does not fall within the scope of paragraph (2) of the CLU: whilst the material may well have been brought from a construction or demolition site, it is not clear to me what was its use in that form.
177. I conclude as follows in relation to each of the allegations in the Scott Schedule.

6 October 1999

178. Complaint: Mr Challinor sitting on a bulldozer with unscreened/screened material; and
179. Complaint: Power screen with woodchip around the machine.

Activity proved? Contemporaneous letter refers to Mr Challinor operating a screener. The photograph taken was too dark to be of use. Ms Buxton recalls seeing a bulldozer moving between screened and unscreened material. No evidence of wood being chipped on site and no reason to screen wood which had been chipped. The nature of the operation alleged to be in breach is not clear. Activity not proved.

Within scope of CLU? No, outside CLU Area and on EN land.

Breach of EN? No, in respect of both items.

29 November 1999

180. Complaint: Deposited wastes dug below requirements of EN.

Activity proved? The material was unscreened mixed materials. No contemporaneous complaint about digging below EN requirements. No requirement in EN relating to excavation.

Within scope of CLU? Alleged by SCC to be partially within and partially outside CLU. Alleged by D1 to be wholly within CLU Area. Likely to have been on CLU Area.

Breach of EN? Not proved.

181. Complaint: Removed soils replaced with construction debris, waste soils, bricks and hardcore.

Activity proved? The materials in question were soils, aggregates, hogging and similar, ie fill material of the type used in construction.

Within scope of CLU? Probably within CLU Area, and within scope of CLU.

Breach of EN? No,

182. Complaint: Unscreened wastes, soils, tarmac, rocks and concrete.

Activity proved? D1 accepts that these were mixed materials.

Within scope of CLU? Probably on CLU Area, and within scope of CLU

Breach of EN? No.

183. Complaint: Power screen.

Activity proved? Yes. It is likely that the screener had been used on site and was not, as Ds allege, being stored on the site in connection with use of site as a contractors' yard.

Within scope of CLU? Outside the CLU Area.

Breach of EN? Yes

184. Complaint: Screened wood.

Activity proved? Presence of a mound of screened wood proved, but no evidence of wood having been chipped on site and no reason to screen wood which had been chipped.

Within scope of CLU? Outside CLU Area.

Breach of EN? Yes, para 2 of EN.

15 February 2000

185. Complaint: Waste containing kerb stones, tarmac, stones and subsoils.

Activity proved? The material had been recovered from construction or demolition sites

Within scope of CLU? Accepted by SCC to be within the CLU Area, and within scope of CLU.

Breach of EN? No

186. Complaint: Sand waste mixed with sandstone and broken tarmac.

Activity proved? Presence of materials proved.

Within scope of CLU? Accepted by SCC to be partly within and partly outside CLU Area. Probably on CLU Area. Within scope of CLU.

Breach of EN? No

5 June 2000

187. Complaint: Bulldozer loading a power screen with screened and unscreened wood waste which is stockpiled.

Activity proved? Mr Challinor was probably operating a bulldozer to move woodchip, not to load a power screener. Although the screener had probably been used in recent times, there was no evidence of the screener in use at the time of observation, and it would appear that wood chip does not require to be screened.

Within scope of CLU? Ds accept that this was outside the CLU Area.

Breach of EN? Not proved.

188. Complaint: Imported and deposited excavation and construction waste.

Activity proved? The material complained of was soil from construction or demolition sites. It comprises soil with pebbles, not mixed waste.

Within scope of CLU? Probably on the CLU Area., and within scope of CLU.

Breach of EN? No

189. Complaint: Earthmoving machines.

Activity proved? Presence of earthmoving machines proved. These were probably on the land for use in earthmoving, not being stored.

Within scope of CLU? Outside the CLU Area.

Breach of EN? Yes.

190. Void filled with newly excavated waste.

Activity proved? The material in question was probably sandy soil from construction or demolition sites which had replaced material referred to in item 3 above.

Within scope of CLU? Probably on CLU Area and within scope of CLU.

Breach of EN? No.

22 February 2001

191. Complaint: Piles of excavated waste, screened wood waste and machinery.

Activity proved? This was observed by Ms Buxton from just outside the Ds' land. I accept that she could see that the material in question was within the land covered by the EN.

Within scope of CLU? Outside the CLU Area.

Breach of EN? Yes

11 May 2001

192. Complaint: Screened bund erected on boundary of EN area.

Activity proved? I accept that Ms Buxton was able to observe the bund from the public road.

Within scope of CLU? Outside the CLU Area.

Breach of EN? Yes

193. Complaint: Site clearance debris.

Activity proved? The material in question was mixed material from construction or demolition sites.

Within scope of CLU? Accepted by SCC to be on CLU Area. Within scope of CLU.

Breach of EN? No

194. Complaint: Unscreened wood waste by the side of screened deposits.

Activity proved? The materials comprised logs and wood chips, and were probably on the land covered by the EN.

Within scope of CLU? Outside CLU Area.

Breach of EN? Yes.

26 July 2001

195. Complaint: Excavated, demolition waste at end of drive.

Activity proved? The material in question had been added to the material referred to in item 16 above ie mixed material from construction or demolition sites.

Within scope of CLU? Accepted by SCC to be on CLU Area. Within scope of CLU.

Breach of EN? No.

196. Complaint: Piled arboricultural (green) waste.

Activity proved? This material had been added to the material referred to in item 17 above.

Within scope of CLU? Outside CLU Area.

Breach of EN? Yes.

197. Complaint: Heaped chipped wood.

Activity proved? This is the same complaint as in item 17 above, save that more material had been deposited.

Within scope of CLU? Outside CLU Area.

Breach of EN? Yes.

198. Complaint: Site road made of imported excavated site clearance waste.

Activity proved? I do not accept that the track had been in existence since 1986. I accept the evidence of Ms Buxton that land had been excavated to form a track to gain access to deposited materials. The track had been formed from imported materials.

Within scope of CLU? SCC say that the track was within the CLU, and Mr Challinor contends that it was on the edge of the CLU Area. Within scope of CLU in so far as within the CLU Area.

Breach of EN? Not proved.

199. Complaint: Excavator.

Activity proved? Excavator and power screen located close to screened and unscreened materials. Probably had been used for screening on site.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Outside the scope of the CLU.

Breach of EN? Yes.

200. Complaint: Power screen with screened soils.

Activity proved? Power screen adjacent to screened and unscreened materials. The screen had probably been used to screen materials on site.

Within scope of CLU? Screen was on the CLU Area, but use of screen on site was outwith scope of CLU.

Breach of EN? Yes

27 July 2001

201. Complaint: Deposits of excavated and construction waste near power screen.

Activity proved? This is the same complaint as in item 23 above, observed for a second time on the following day.

Within scope of CLU? Screen was on the CLU Area, but use of screen on site was outwith scope of CLU.

Breach of EN? Yes, but this duplicates item 23 above.

202. Complaint: Site access track, made of brick, concrete and rubble.

Activity proved? This is the same complaint as in item 21 above.

Within scope of CLU? See 21 above.

Breach of EN? Not proved.

25 September 2001

203. Complaint: Lorry tipping rubble waste.

Activity proved? A truck was observed tipping materials recovered from a construction or demolition site.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No

204. Complaint: Additional green aboricultural waste.

Activity proved? The photograph indicates that the material probably was on the EN land.

Within scope of CLU? No

Breach of EN? Yes

22 March 2002

205. Complaint: Downings lorry with demolition waste and tipping of waste.

Activity proved? Such a truck was observed tipping demolition concrete from construction or demolition sites. Such material is usable in its unaltered form.

Within scope of CLU? Accepted by SCC to be within CLU Area. Within scope of CLU.

Breach of EN? No

16 May 2002

206. Complaint: Mounds of waste.

Activity proved? Presence of mounds of mixed materials, namely demolition waste.

Within scope of CLU? Some of the material was within and some outwith the CLU Area

Breach of EN? Yes, to the extent that material was outwith the CLU Area, but no evidence to identify what volume or proportion of material fell within the scope of the EN. Overall, breach not proved.

16 August 2002

207. Complaint: Lorry entered the site, deposited waste and excavator levelled the mound of waste.

Activity proved? No. Mr Webb was unable to identify what material was deposited.

Within scope of CLU? Not applicable.

Breach of EN? None proved.

20 August 2002

208. Complaint: Tree cuttings, measuring 15m x 3m, wooden fence panels and cable drum.

Activity proved? Yes. I accept that the materials had been deposited on EN land.

Within scope of CLU? Accepted by Ds to be outside CLU Area

Breach of EN? Yes

209. Complaint: Chipped wood measuring 12m x 4m.

Activity proved? The materials comprised wood chip and peat. These had been mixed on site.

Within scope of CLU? Outside CLU Area.

Breach of EN? Yes.

210. Complaint: Recent worked face of waste material.

Activity proved? Mr Webb observed a recently worked face of mixed materials which had been deposited. I reject Mr Challinor's evidence that the face had been worked in order to remove roof trusses.

Within scope of CLU? Accepted by Ds to be outside CLU Area.

Breach of EN? Yes.

211. Complaint: Komatsu PC LC machine and used within 2 hours prior to visit.

Activity proved? D1 accepts that the machine had been used within about 2 hours prior to his visit.

Within scope of CLU? Not on CLU Area.

Breach of EN? Yes

212. Complaint: 520 Reclaimer screener.

Activity proved? The evidence indicates that it is likely that the screener had been used on site.

Within scope of CLU? On the CLU Area. Outside scope of CLU.

Breach of EN? Yes

213. Complaint: O & K RH9LC excavator.

Activity proved? It is likely that the machine had been used in connection with the screening of materials on site.

Within scope of CLU? On the CLU Area but outwith the scope of the CLU.

Breach of EN? Yes

12 February 2003

214. Complaint: Dawkes lorry entering site loaded with waste.

Activity proved? The truck entered the site. The driver obtained a ticket from the site office then proceeded to tip his load, which was probably soil from a demolition site.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No

7 April 2003

215. Complaint: Dawkes lorry entering site loaded with waste.

Activity proved? This truck entered the site early morning on the first day of the direct action. It is likely that it was carrying soil from construction or demolition sites. Mr Walker arranged for the truck to be "seized and impounded". No materials were deposited.

Within scope of CLU? No evidence as to where materials were to have been deposited.

Breach of EN? No. A laden truck entering the site does not amount to a breach of EN.

12 April 2003

216. Complaint: Lorry entered site loaded with waste.

Activity proved? No activity is alleged by SCC. The truck was prevented from entering the site.

Within scope of CLU? No evidence as to where materials were to have been deposited.

Breach of EN? No. A laden truck entering site does not amount to a breach of EN.

Note: items after this date post date the direct action and thus relate only to the question whether an injunction should be granted.

29 April 2004

217. Complaint: Broken bricks, cut timber, broken tarmac and broken plastic pipes.

Activity proved? Mound of mixed materials and a separate mound beside portacabin of mainly logs and coal but with a small quantity of tarmac mixed in. The logs and coal were for domestic use

Within scope of CLU? Accepted by SCC to be within the CLU Area. Mixed materials were within scope of CLU.

Breach of EN? No

218. Complaint: Dark mound of waste, waste soils, cut timber, bricks and concrete.

Activity proved? Mound of mixed material recovered from construction or demolition sites and capable of re use without further treatment.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

27 May 2004

219. Complaint: Demolition waste and green waste measuring 25 m x 10 m (60 m³).

Activity proved? This material had been brought on to the site later than 29 April 2004.

Within scope of CLU? Not on CLU Area.

Breach of EN? Yes.

12 August 2004

220. Complaint: Sandy coloured material measuring 25 m x 13 m x 14 m (435 m³).

Activity proved? Presence of a mound of sandy material which had been imported from a Tesco construction site. Material was mainly sand.

Within scope of CLU? On the CLU Area and within scope of CLU.

Breach of EN? No

1 October 2004

221. Complaint: Cut wood.

Activity proved? A mound in front of the steel frame building comprising mainly large logs.

Within scope of CLU? Probably mainly outside CLU Area. That part of the material within the CLU Area within the scope of CLU.

Breach of EN? Not proved

222. Complaint: Wood chippings.

Activity proved?

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No

223. Complaint: Light coloured waste.

Activity proved? This was in the same location as the mound of sandy material referred to in item 43 above. By 1 October 2004, that mound had been increased by further deposit of sand material.

Within scope of CLU? Probably on CLU Area. Within scope of CLU.

Breach of EN? No

10 November 2004

224. Complaint: Windrow of chipped wood measuring 25 m x 5 m.

Activity proved? Mound of wood chip proved.

Within scope of CLU? Partly on and partly outside CLU Area. Not possible to conclude the extent to which material was outside the CLU Area.

Breach of EN? To the extent that material was outside CLU Area, there would be a breach of EN, but the absence of evidence to establish what lay outside the CLU Area leads to the conclusion that breach of EN is not proved.

225. Complaint: Mound of waste wood.

Activity proved? Mound of logs proved. This is the same mound as in item 44 above but with more depositing.

Within scope of CLU? Probably mainly outside CLU Area. That part of the material within the CLU Area within the scope of CLU.

Breach of EN? Not proved.

226. Complaint: Light coloured material measuring 300 m³.

Activity proved? This is the same mound as in items 43 and 46 but added to. Presence of a mound of sandy material which had been imported from a Tesco construction site. Material was mainly sand.

Within scope of CLU? Probably within the CLU Area. Within scope of CLU.

Breach of EN? No.

227. Complaint: Waste clays and excavated soils, measuring 50 m³.

Activity proved? Presence of mound of clays and a separate mound of sandy soils proved.

Within scope of CLU? SCC accepted that all were within the CLU Area. Within scope of CLU.

Breach of EN? No.

13 January 2005

228. Complaint: Mr Shaw entering site with a JCB Fastrac.

Activity proved? Mr Webb accepted that the trailer contained material from a demolition site. It was tipped within the CLU Area.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

21 January 2005

229. Complaint: Waste soils, broken bricks and concrete.

Activity proved? Presence of a mound of soil, broken bricks and concrete, recovered from a construction or demolition site.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within the scope of CLU.

Breach of EN? No.

230. Complaint: Discarded green waste.

Activity proved? Presence of mound of branches and logs proved.

Within scope of CLU? Accepted by SCC to be within the CLU Area.

Breach of EN? No.

231. Complaint: Hardcore

Activity proved? Presence of materials recovered from demolition site. Probably capable of re-use without further treatment.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

232. Complaint: Plastic ground works safety fencing.

Activity proved? Presence of safety fencing proved. Appears to have been capable of re use.

Within scope of CLU? Not on CLU Area

Breach of EN? No, fencing not waste.

56 Complaint: Levelled area of bricks measuring 35 m x 15 m.

Activity proved? Hardcore (bricks and similar) recovered from a demolition site had been levelled to fill an area which was liable to flood.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

27 January 2005

233. Complaint: Demolition waste, mixed soils, concrete, wood and root material.

Activity proved? Presence of mixed material freshly imported from construction or demolition sites and some green material proved.

Within scope of CLU? On CLU Area. Demolition spoil within scope of CLU, green material outwith scope of CLU.

Breach of EN? No, as regards the bulk of the material.

28 April 2005

234. Complaint: Old steel pipes by a blue lorry.

Activity proved? Presence of old pipes proved. These had been on site before the direct action but had not removed during that operation because of risk from overhead power cable. Prior to the direct action the pipes had been on CLU Area. They were moved during the direct action to outside the CLU Area.

Within scope of CLU? As at 28 April 2005 outside the CLU Area.

Breach of EN? Yes.

235. Complaint: Additional mound of soils, bricks and concrete.

Activity proved? Presence of mound of mixed material from construction or demolition sites proved.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

236. Complaint: Excavated waste soils and green waste.

Activity proved? Yes

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

237. Complaint: Light coloured material with darker clays and hardcore underneath.

Activity proved? Presence of separate mounds of sandy soil and darker soil. Capable of re-use without further sorting.

Within scope of CLU? On CLU Area and within scope of CLU.

Breach of EN? No.

21 June 2005

238. Complaint: Waste subsoil, hardcore, tarmac, mixed concrete near Kettle and Talbot lorry.

Activity proved? Presence of such materials proved. These had been recovered from construction or demolition site and were capable of re-use without further treatment or sorting.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

239. Complaint: 2 loads of broken concrete.

Activity proved? Yes. This was material recovered from a construction or demolition site and was capable of re-use without further treatment or sorting.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

240. Complaint: 3 loads of soils and hardcore.

Activity proved? These were materials recovered from demolition or construction sites and was capable of re-use without further treatment or sorting.

Within scope of CLU? Accepted by SCC to be within the CLU Area. Within scope of CLU.

Breach of EN? No.

10 August 2005

241. Complaint: Loads of mixed concrete, bricks, timber posts, concrete posts.

Activity proved? The materials described above had been deposited on the land. I am not persuaded that these could be re-used without further treatment or sorting.

Within scope of CLU? On CLU Area, but outwith the scope of the CLU.

Breach of EN? Yes.

242. Complaint: Complaint received by a member of the public made that Nicholas Till was tipping.

Activity proved? No evidence to support this allegation.

Breach of EN? No.

26 October 2005

243. Complaint: 2 complaints received by members of the public re tipping.

Activity proved? No evidence to support this allegation.

Breach of EN? No.

244. Complaint: Complaint received by a member of the public that Holleran's lorry was tipping waste.

Activity proved? No evidence to support this allegation.

Breach of EN? No

Generally

Complaints: As at 7 April 2003 the landowner had failed to remove all the surplus material, plant and equipment and restore the site in accordance with many of the requirements of the EN. In breach of the EN, unauthorised use of land outside the CLU, by storage of recovered materials and storage and use of plant and machinery including portable building. In breach of the EN, unauthorised use of land within the CLU.

These general complaints are covered in general terms in the body of the judgment and in detail in relation to each separate allegation above.