Caravan – Green belt – Planning control – Defendants purchasing agricultural land for residential use – Claimant local authority applying for injunction to restrain use of land as caravan site in breach of planning control and enforcement notices – Whether granting of injunction proportionate – Application dismissed
The claimants were the local planning authority for an area of metropolitan green belt where the defendants had purchased a plot of agricultural land (the site). The defendants were English gypsies who had contributed equally to purchase the site for £80,000 in return for equal beneficial interests in the land.
The site had been the subject of two enforcement notices in 2001, which had been upheld on appeal. One of the notices required inter alia the removal of all touring caravans, the permanent cessation of the use of the site for residential purposes and the reinstatement of the site to a condition suitable for agriculture. At no time had the claimants issued proceedings to restrain the defendants continuing breaches.
In April 2009, the defendants and their families moved onto the site with 14 caravans and 30-50 lorry loads of road planings and earth-moving equipment, which was used to create an encampment with a new continuous roadway through the middle and three pitches on either side and fences around the boundaries. No planning permission had been obtained for those activities.
The claimants sought an injunction, pursuant to section 187B of the Town and Country Planning Act 1990, requiring the defendants to remedy alleged breaches of planning control and enforcement notices, in particular by ceasing their use of the land as a residential caravan site. On the same day the defendants applied for retrospective planning permission, which was refused. An appeal against that decision was pending.
The court had to consider on the one hand the detriment to the environment and the importance of upholding planning law, and on the other, the hardship likely to be caused to the defendants and their families.
Held: The application was dismissed.
The principal purpose of the jurisdiction to grant an injunction under section 187B was to promote compliance with planning law as a matter of public interest. The greater the adverse environmental effect of the breach or anticipated breach of planning law sought to be restrained, the greater the case for granting an injunction. It was not sufficient for the local planning authority to conclude that an injunction was the only means of preventing an actual or anticipated breach of planning law. The court also had to consider whether there were any countervailing issues of hardship for the defendants as a result of a grant of an injunction and whether the merits of an injunction outweighed any such hardship.
The court had a wide discretion under section 187B. However, it was not the function of the court to merely rubber stamp a decision of the local planning authority to stop the use by a defendant in breach of planning control. The court was as well placed as the local planning authority to decide whether the considerations relating to the human factor outweighed purely planning considerations.
An injunction should be granted only if, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and the personal situation of and any hardship to the defendants and their families, it would be a proportionate remedy. Proportionality required that an injunction should not impose an excessive burden on the individual whose private interests were at stake, in the case of a gypsy his private life and home and the retention of his ethnic identity.
Factors that favoured the granting of an injunction included: (i) there had been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendants or evidence that they had wilfully exploited every opportunity for prevarication and delay; (ii) conventional enforcement measures had failed over a prolonged period to remedy the breach by the defendants of planning control; (iii) there was some urgency in the situation that was sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development, or one that was causing a significant nuisance or disruption to neighbours or members of the public; and (iv) there was clear evidence of suitable alternative accommodation.
Factors that pointed against granting an injunction included: (i) there had not been a history of prolonged breach of planning control etc, by the defendants; (ii) conventional enforcement measures against the defendants had not been taken; (iii) there was no urgency in the situation that was sufficient to justify the compulsory removal of the defendants and their families from a site where they were residing; (iv) the local planning authority had failed to consider or weigh in the balance the personal circumstances of the defendants and their families and any hardship that might flow from the grant of an injunction; (v) there was a real prospect of a successful appeal against the refusal of planning permission; (vi) the effect of forcing the defendants and their families to leave the site would or might cause hardship or danger to them; and (vii) there was no clear evidence of suitable alternative accommodation.
Unless at the time of giving judgment, the judge would be prepared, if necessary, to contemplate sending the defendants to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. In particular, the more flagrant and persistent the record of ignoring or defying enforcement notices or prosecutions, the greater the case for granting an injunction.
It was not the function of the court to second guess or go behind planning decisions already taken by the local planning authority. However, it was legitimate for the court to consider whether there was a real prospect that planning permission would be granted or an appeal against the refusal of planning permission would be successful. In such a case, the court had the power to adjourn the application for an injunction until after the result of a planning appeal was known. Alternatively, the court could take its conclusion that there was a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction: South Buckinghamshire District Council v Porter (No 1) [2003] UKHL 26; [2003] 2 AC 558 considered.
Applying those factors to the instant case, it was not proportionate to grant an injunction, taking into account the defendants’ conduct, their motives and the significant hardship that they and their families would suffer if they were removed from the site, including, but not exclusively, by reference to the unavailability of suitable alternative accommodation.
Robin Green (instructed by Sharpe Pritchard) appeared for the claimants; Michael Paget (instructed by Bramwell Browne Odedra) appeared for the defendants.
Eileen O’Grady, barrister
