Town and Country Planning Act 1971 — Enforcement notices — Site used as a winter stop-over for mobile homes, caravans and equipment of travelling showman — Appeal by local authority from refusal by deputy High Court judge of interlocutory injunction — Principles in leading case of American Cyanamid Co v Ethicon Ltd — Balance of convenience — General rule that a local authority should try the effect of criminal proceedings available to them before seeking the assistance of the civil courts: Stoke-on-Trent City Council v B&Q (Retail) Ltd — Local authority’s appeal from refusal of injunction dismissed
authority in this case (the present appellants) were concerned about breaches
of planning control consisting of the unauthorised use of a site for the
purpose of a mobile showman’s winter quarters — The authority’s concern gave
rise to a multiplicity of proceedings — The present defendant had purchased
land including the relevant site from the previous owner when the site was
already the subject of an enforcement notice requiring the discontinuance of
its use for a mobile home and the removal of the offending structure — The
defendant disregarded warnings and was found to have stationed on the site some
five residential caravans or mobile homes and 11 other vehicles and trailers —
He intended to use the site as a convenient stop-over for his caravans and
equipment — The early months of 1990 witnessed a considerable amount of
litigious or procedural activity — The local authority issued three summonses
against the defendant for failure to comply with the enforcement notice served
on his predecessor — The authority also issued a writ claiming an injunction to
restrain the defendant from residing in a mobile home, caravan or otherwise on
the site and from storing on it mobile homes, caravans, trailers and showground
or funfair equipment — The defendant applied for planning permission to use the
site as a showman’s winter quarters — The authority’s writ was served on the
defendant and the summonses were adjourned — The application for an
interlocutory injunction came before the High Court (Mr Patrick Bennett QC,
sitting as a deputy judge) and was dismissed; hence the present appeal by the
local authority — The defendant’s application for planning permission was
refused and the authority served a further three enforcement notices on him,
alleging breaches of planning control in consequence of the present user of the
site
judge’s dismissal of the authority’s application for an interlocutory
injunction was based on his view that the language of the 1985 enforcement
notice was not wide enough to cover the placing of a mobile home on the site by
the defendant — The Court of Appeal reached the same result by a different
route — As this was an application for an interlocutory injunction, it had to
be determined in accordance with the American Cyanamid principles — There was a
serious question to be tried and the test to be applied was the balance of
convenience — Relevance factors were whether damages would be an adequate
remedy (and here the answer was clearly ‘no’) and whether the authority’s
undertaking in damages (if an injunction were granted but the authority lost at
the trial) would be an adequate remedy — In the present case, however, there
was superimposed on the question of the balance of convenience a further
question as to the appropriateness of granting injunctions at all to a local
authority in cases, such as the present, where Parliament has made special
provisions for penalties for breaches of the relevant statutes: per Lord
Templeman in Stoke-on-Trent City Council v B&Q (Retail) Ltd — In
the present case the effect of the criminal law in relation to the enforcement
notices had not yet been tested, as the proceedings had been adjourned — Other
points to be taken into account were that there had been no permanent or
long-term damage to the site; that decisions on the planning and enforcement
notice appeals were due to take place soon; that the defendant lived in a
mobile home on the site and had nowhere else to store his vehicles and
equipment; and that the showman’s winter season was now approaching when it
would be difficult for showmen to find winter quarters — Also, to turn the
defendant out when the planning appeals were still pending could, if permission
were granted, inflict damage on the defendant disproportionate to the temporary
protection of any public interest — The balance was clearly in favour of
refusing an injunction — Appeal dismissed
The following
cases are referred to in this report.
American
Cyanamid Co v Ethicon Ltd [1975] AC 396;
[1975] 2 WLR 316; [1975] 1 All ER 504, HL
Stoke-on-Trent
City Council v B&Q (Retail) Ltd [1984]
AC 754; [1984] 2 WLR 929; [1984] 2 All ER 332, HL
This was an
appeal by East Hampshire District Council from a decision by Mr Patrick Bennett
QC, sitting as a deputy judge of the Queen’s Bench Division, dismissing an
application by the council for an interlocutory injunction restraining the
defendant, Mr William Davies, by himself, his servants or agents (a) from
occupying or residing in a mobile home or residential caravan or otherwise on
the site at Bowleswood Farm, Headley, Bordon, Hampshire, and (b) from using the
site for the storage of mobile homes, residential caravans, vehicle trailers
and showground or funfair equipment.
James Findlay
(instructed by Sharpe Pritchard, agents for the solicitor to East Hampshire
District Council) appeared on behalf of the appellant council; Sebastian Head
(instructed by Fox & Kent, of Chichester) represented the respondent.
Giving
judgment, FOX LJ said: This is an appeal by East Hampshire District
Council (‘the council’) from an order of Mr Patrick Bennett QC, sitting as a
deputy judge of the Queen’s Bench Division, dismissing the council’s
application for an interlocutory injunction.
The case
concerns land at Bowleswood Farm, Headley, Bordon, Hampshire. I will refer to
it as ‘the site’. It is within the council’s district. The council brings the
action under the powers conferred by section 222 of the Local Government Act
1972. The council is a local authority within the provisions of section 272 of
that Act.
The site was
formerly part of a larger agricultural estate and more recently has been
divided into sub-plots of two or three acres each. The site is situate on the
northern side of the B3002. Directly opposite the land, and on the south side
of the B3002, are Bramshott and Oakshott Commons, both of which are owned by
the National Trust and which constitute a designated site of special scientific
interest covering about 370 ha and including extensive tracts of heathland. The
site itself has been included in Hampshire County Council’s Bramshott and
Ludshott countryside heritage area.
That
designation is at present on a non-statutory basis. The public has access to
the National Trust land.
The site is
not obscured from the public road except by a small hedge. There is also a 2-m
high steel mesh fence bordering the site but it does not prevent persons
passing on the public road from seeing the whole extent of the site.
It is the
council’s case that part of the site is being used by the defendant unlawfully
and in breach of the planning legislation as an area for a showman’s winter
quarters. That involved the placing of vehicles, including mobile homes, on the
site and, say the council, constitutes a material change of use. That change of
use was unauthorised and a breach of the planning laws. There are upon the
land, according to the evidence, five residential caravans or mobile homes,
together with 11 assorted vehicles or trailers. The council’s view is that
these vehicles are a particularly offensive sight in this area of highly
attractive countryside.
A planning
authority (the council in the present case) may issue an enforcement notice in
respect of a breach of planning control requiring the breach to be remedied. A
person having an interest in the land may appeal against the notice and, if he
does, the notice has no effect pending the final determination or withdrawal of
the appeal (see section 88(10) of the Town and Country Planning Act 1971 [now
section 175(4) of the Town and Country Planning Act 1990]).
An enforcement
notice has effect against the owner of the land for the time being but, since
appeals must be within four weeks from the notice, the owner for the time being
may be out of time for appealing.
If an
effective enforcement notice is not complied with, the person in default is
liable to a fine.
On October 5
1981 temporary planning permission was granted to a Mr Swoish for the placing
of a mobile home on an area including the site. On October 5 1984 the temporary
planning permission expired.
On January 3
1985 an enforcement notice (‘the 1985 enforcement notice’) was served, taking
effect on February 14 1985. This required that there be permanent
discontinuance ‘of the use of the land as a site for a mobile home’ and the
removal of the mobile home from the land. Mr Swoish appealed against that
enforcement notice. The appeal was dismissed on October 8 1985.
On September
22 1989 the defendant purchased from Mr Swoish an area of land which included
the site. Mr Swoish retained about 13 acres.
On November 7
1989 Mr Curtis, a development inspector in the planning department of the
council, visited the site and met the defendant, who told him that he intended
to use the land as a winter stop-over for his caravans and equipment. Mr Curtis
gave the defendant a copy of the 1985 enforcement notice. On November 24 1989
Mr Curtis visited the site again and found on it five residential caravans or
mobile homes and 11 other vehicles or trailers.
On January 8
1990 the council issued three summonses against the defendant in respect of
failure to comply with the 1985 enforcement notice.
On January 10
1990 the writ in this action was issued. The relief sought was (inter alia)
an injunction restraining the defendant by himself, his servants or agents (a)
from occupying or residing in a mobile home or residential caravan or otherwise
howsoever on the site, and (b) from using the site for the storage of mobile
homes, residential caravans, vehicle trailers and showground or funfair
equipment.
On January 22
1990 the defendant applied for planning permission to use the site as a
showman’s winter quarters (that is to say from October 31 to March 1 each
year). On January 23 1990 the writ was served. On the same day, January 23, the
three summonses came before the Alton magistrates and were adjourned for the
defendant to obtain legal advice.
On February 6
1990 the present application for an injunction came before Mr Patrick Bennett
QC and was dismissed.
On February 20
1990 the three summonses again came before the Alton Bench and by consent were
adjourned sine die pending the determination of the present appeal.
On March 6
1990 the council gave notice of appeal against the decision of Mr Bennett.
On March 7
1990 the defendant’s application for planning permission was refused.
On March 23
1990 the council served three further enforcement notices upon the defendant in
respect of alleged breaches of planning control in consequence of the present
user of the site.
The decision
of the deputy judge turned largely on the effect of the 1985 enforcement
notice. The background to that notice was the planning permission granted to Mr
Swoish in October 1981. That provided that for three years from the date of the
permission or until the dwelling ceased to be occupied by the appellant (Mr
Swoish), whichever should first happen, ‘the use hereby permitted’ shall cease.
The permitted use was the retention of a mobile home on the land. Schedule 1 to
the enforcement notice states the premises to which the notice applies; those
premises include the site. Schedule 2 states the alleged breach of conditions,
ie that the use of the land as a site for a mobile home has not ceased after
the expiration of the three-year period. Schedule 3 states the steps required
to be taken to remedy the breach, ie ‘permanently discontinue the use of the
land as a site for a mobile home and remove the mobile home from the land’.
The deputy
judge took the view that, as a matter of construction, the language of the 1985
enforcement notice was not wide enough to cover the placing of a mobile home on
the land by the defendant. He therefore held that the notice does not
necessarily have an application wide enough to include the admittedly unlawful
activities (of the defendant) on the land. In these circumstances he refused an
injunction.
Accepting that
there may be questions of construction as to the ambit of the 1985 enforcement
notice, I do not think it is appropriate to attempt to resolve them on an
interlocutory application or that their resolution in favour of the defendant
is sufficient to determine the present application. The 1985 notice and the
three notices served this year are a basis for criminal proceedings (assuming
them to be valid and enforceable according to their terms). As I have
mentioned, the 1990 notices are under appeal and, therefore, of no effect
pending the appeal. The 1985 notice, whatever its construction, adds little to
the council’s contention that the defendant’s present activities in any event
constitute unlawful development on the site and should be stopped until
judgment in the action or further order.
This is an
application for an interlocutory injunction and must be determined in
accordance with the American Cyanamid principles. As to those, there is,
in my view, a serious issue to be tried in the action. It is not, I think, in
dispute that the defendant’s activities are in breach of the planning law. The
issue to be tried is whether it is a proper case for the grant of a permanent
injunction. The next question is whether damages at law would be an adequate
remedy for the council. They would not. Damages are a wholly inappropriate and
inadequate remedy for a local authority in these circumstances. Next, would the
council’s undertaking in damages, if an injunction were granted but the council
lost at the trial, be an adequate remedy for the defendant? This gives rise to questions having regard to
the position of travelling showmen. But, in any event, the matter under the American
Cyanamid principles becomes a question of the balance of convenience (see American
Cyanamid Co v Ethicon Ltd [1975] AC 396 at p 408E). I will return to
that, but there is superimposed upon the question of the balance of convenience
a further question as to the appropriateness of granting injunctions at all to
a local authority in cases, such as the present, where Parliament
In Stoke-on-Trent
City Council v B&Q (Retail) Ltd [1984] AC 754 (a case concerned
with breaches of the Sunday trading legislation) Lord Templeman, whose speech
was concurred in by the other members of the House, said at p 776:
The right to
invoke the assistance of the civil court in aid of the criminal law is a
comparatively modern development. Where Parliament imposes a penalty for an
offence, Parliament must consider the penalty is adequate and Parliament can
increase the penalty if it proves to be inadequate. It follows that a local
authority should be reluctant to seek and the court should be reluctant to
grant an injunction which if disobeyed may involve the infringer in sanctions
far more onerous than the penalty imposed for the offence. In Gouriet v Union
of Post Office Workers [1978] AC 435 Lord Wilberforce said at p 481, that
the right to invoke the assistance of civil courts in aid of the criminal law
is ‘an exceptional power confined, in practice, to cases where an offence is frequently
repeated in disregard of a, usually, inadequate penalty . . . or to cases of
emergency . . .’ In my view there must
certainly be something more than infringement before the assistance of civil
proceedings can be invoked and accorded for the protection or promotion of the
interests of the inhabitants of the area.
Lord Templeman
went on to say that as a general rule a local authority should try the effect
of criminal proceedings before seeking the assistance of the civil courts but,
in the Stoke-on-Trent case, the council were entitled to take the view
that the traders would not be deterred by the maximum fine, which was
substantially less than the profit which could be made from illegal Sunday
trading.
The position
in the present case is as follows. First, the effect of the enforcement of the
criminal law has not been tested at all. No action can be taken by way of
prosecution in respect of the 1990 enforcement notices because their operation
is stayed by the statute pending the appeals against them. So far as the 1985
enforcement notice is concerned, proceedings before the magistrates have been
instituted by the council but have been adjourned, by consent of both sides,
pending the outcome of the present appeal.
Second, it is
a case in which the defendant has not done permanent or long-term damage to the
land and, pending the outcome of the planning and enforcement notice appeals,
he offers an undertaking not to do such damage (though the precise terms of any
such undertaking may require consideration).
Third, the
planning and enforcement notice appeals will be heard in a few weeks, ie on
December 4. The decision will not follow immediately but will be given within a
period estimated at between one and three months. I should mention that though
the matter was heard before the deputy judge in February it did not come before
the Court of Appeal until the Michaelmas Term. Apparently, there was some
misunderstanding as to the intention of the council to pursue the appeal and it
was struck out of the list.
Fourth, the
defendant’s evidence is that he lives in a mobile home on the site and has
nowhere else where he can store his vehicles and equipment. The legislation, I
should observe, shows a degree of protectiveness in relation to a resident in a
mobile home in that section 90 of the Town and Country Planning Act 1971
[section 183 of the 1990 Act] provides that a stop notice shall not prohibit
the use of land as a site for a caravan occupied by any person as his only or
main residence.
Moreover, the
showman’s winter season is now upon us and it is difficult for showmen to find
winter quarters. To turn the defendant out now when the planning appeals are
still pending could, if planning permission were granted on the appeals, cause
damage to the defendant which might be disproportionate to the temporary
protection of any public interest.
Looking at the
whole matter, I think that the balance of convenience is in favour of refusing
an injunction. I am not criticising the council for starting the proceedings;
they are properly concerned for the public interest in the amenities of the
countryside. Nor am I saying that the defendant has a licence to remain
indefinitely. I am saying only that, having regard to the onset of the winter
season, the difficulties likely to face the defendant in finding quarters for
the remainder of the season and the fact that the planning appeals are only a
few weeks away tilt the balance of convenience, in a case where the criminal
penalties have not been applied, in favour of the defendant at this stage. I
would, therefore, dismiss the appeal.
BUTLER-SLOSS
LJ agreed and did not add anything.
The appeal
was dismissed with costs in the Court of Appeal; the costs’ order below to
stand.
