Gypsy site — Occupation in breach of injunction — Application to vary injunction so as to permit residence pending planning appeal — Prospects of success on planning appeal — Whether judge erring in approach to planning merits — Appeal dismissed
The appellants were a gypsy family consisting of a married couple and their adult daughter, the third appellant, who had three children. The third appellant purchased a plot of land with a view to stationing the family’s caravans there. The respondent council obtained an injunction restraining that anticipated breach of planning control. Accordingly, the third appellant applied for planning permission to use the land as a gypsy-caravan site. Permission was refused, and the third appellant appealed against that decision. While the planning appeal was still pending, the appellants moved onto the site in breach of the injunction, having been obliged to move from a lay-by where they had been living in the meantime.
The appellants applied to vary the injunction so as to permit them to stay on the land until their planning appeal was determined. That application was refused, and, on the application of the respondents, the judge committed the appellants for contempt of court for their breach of the injunction. In reaching his decision, the judge took into account the appellants’ chances of success in their planning appeal. On the information before him, he concluded that the appellants did not have a realistic prospect of success.
The appellants appealed. They did not dispute that they were in contempt of court, but they maintained that the application to vary the injunction should have been allowed. They submitted, inter alia, that the judge had erred by refusing to enter into a more detailed examination of the merits of the planning appeal, and that he should have permitted evidence to be heard from various experts who had expressed a more positive view.
Held: The appeal was dismissed.
The judge had correctly applied the principles laid down in the relevant authorities: Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] 1 WLR 1460 and South Bucks District Council v Porter [2001] EWCA Civ 1549; [2002] 3 PLR 1 applied. The case was not distinguishable in any relevant way from Mid Bedfordshire. The judge had not been obliged to second-guess the outcome of the planning appeal, and had not had the material before him upon which to do so. He had been entitled to find that the appellants had no realistic prospect of success. It was insufficient for the appellants to show that others took a different view of the planning merits; they had to show that the judge could not reasonably have reached the conclusion that he did.
Per Tuckey LJ: It was inappropriate for the court to hear evidence to get a better idea of the prospects of success in a planning appeal. Nothing in South Bucks suggested that such an exercise was necessary. The court should obtain a broad view of the merits from the papers, as it often had to do in other contested interim proceedings.
Marc Willers (instructed by South West Law, of Bristol) appeared for the appellants; Saira Kabir Sheikh (instructed by Sharpe Pritchard) appeared for the respondents.
Sally Dobson, barrister
