Gypsy sites — Injunctions against persons unknown — Appellants moving onto site after date of injunction — Committal for breach of injunction — Whether judge should have considered personal circumstances and proportionality prior to finding appellants bound by injunction — Appeal dismissed
In each of the joined appeals, the relevant local planning authority had obtained an injunction, under section 187B of the Town and Country Planning Act 1990, restraining the use of land for the siting of gypsy caravans. As permitted by section 187B(3), the injunctions were expressed to bind categories of persons who remained unnamed at the date of the injunction: namely the owners of certain plots of land in the first case, and “persons unknown” in the second. In each case, the appellant subsequently moved onto the land in breach of the relevant injunction, and was subsequently committed for contempt of court. In the first case, the appellant was given a suspended custodial sentence of 28 days. In the second, the issue of sentencing remained outstanding at the date of the appeal hearing. Although, in the first case, the appellant had been joined as a defendant to the committal proceedings on the application of the local authority, in the second case the appellant herself had made that application and it been refused on the ground that it was unnecessary since she was already a defendant by definition.
In both cases, the appellants argued, unsuccessfully, that the court should not find that they were bound by the respective injunction without having conducted the balancing exercise prescribed in South Bucks District Council v Porter [2003] UKHL 26; [2003] 3 PLR 101, including a consideration of their personal circumstances and the proportionality of the measure in each case. On appeal, the central issue was whether, and in what circumstances, the South Bucks approach should be applied in cases where the injunction was not against named individuals, but against individuals who remained unnamed at the date of its grant.
Held: The appeals were dismissed.
1. The ratio of South Bucks, in which each of the respondents had been in occupation of the land when the injunctions were granted, did not apply directly to cases such as the present, where the appellants had entered into occupation at a later date. Nor should South Bucks be applied by analogy. The correct approach was that taken where a defendant occupied land in breach of an order of the court: Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] 1 WLR 1460 applied. Each of the appellants had become a defendant to the committal proceedings upon carrying out an act that put the appellant into the class of defendant defined by the relevant injunction. It had not been necessary to make a separate application to join the appellants as defendants to those proceedings, since, by the date of the committal hearings, each had been a defendant, and each had been in breach of the relevant injunction. That decision did not depend upon any exercise of discretion or balancing exercise carried out by the judge. The South Bucks approach arose only in an action for an injunction against a named party, in a subsequent application by a defendant to discharge or vary an injunction, or, to some extent, in the sentencing exercise once a defendant had been found guilty of contempt.
2. In the light of the above, the relevant principles were as follows. South Bucks applied when the court was considering whether to grant an injunction against named persons. It did not apply in full on an application for an injunction against unnamed persons, since the relevant personal information would not be available. However, authorities should avoid applying against unnamed persons where it was unnecessary to do so. A person who learnt that he or she had been joined as a defendant to an injunction should not take action in breach of it, but should apply to the court to discharge or vary it, whereupon South Bucks would come into play. A similar application should be made where a person discovered that he or she was already in breach. A person who took action in the knowledge that he or she was breaching the injunction should apply to vary or discharge it, whereupon South Bucks would again apply, and the factors to be taken into consideration would include the explanation for the breach and its nature. In such cases, the defendant would remain in breach for the past even if the injunction were discharge for the future. South Bucks was relevant only to the question of whether to grant an injunction in the first place, or to vary or discharge it, and was irrelevant to the issue in committal proceedings, which was simply whether the injunction had been breached.
Michael Paget (instructed by Community Law Partnership, of Birmingham, in the first appeal and by Archer & Archer, of Ely, in the second appeal) appeared for the appellants; Patrick Darby (instructed by the legal department of Bromley London Borough Council) appeared for the respondents in the first appeal; David Elvin QC and Richard Langham (instructed by the legal department of South Cambridgeshire District Council) appeared for the respondents in the second appeal.
Sally Dobson, barrister
