Development — Green belt — Site being set up for gypsy caravans — Planning permission not yet granted — Injunction granted by High Court — Whether jurisdiction for granting injunction exists while planning procedures still pending — Whether planning controls comprise complete code — Appeal by defendants allowed
Agricultural land, comprising three fields, was situated in the parish of Owston, near Doncaster, within an area designated for planning purposes as part of the South Yorkshire green belt. The first defendant, Mr Green, was a gypsy and the legal owner of the three fields, which he had acquired prior to May 1991, with the intention of developing as a gypsy caravan site. Having spoken to the planning authorities, he was advised to submit a planning application and told that it was in the green belt area, with implications regarding the South Yorkshire structure plan.
Mr Green considered the best plan was to establish the gypsy site first before making an application. The council, who learned that electricity and water supplies were being connected to the site, in June 1991 sent a warning letter of their intention to seek an injunction to restrain the development. They also sent a notice stating that they would pursue legal proceedings for an injunction and, in addition, would issue an enforcement notice and a stop notice for any breach. The development continued with the construction of an access road, each field fenced off with low fencing and a temporary generator being installed. Large residential caravans then moved in. The site was fully established by the time the defendant’s planning application was received. It was well laid out and to a high standard, with all services. There were 245 caravans on the site.
On July 9 1991 the council issued a writ seeking an injunction to restrain the use of the land, removal of the caravans and restoration of the fields. At first instance, both sides accepted that a stop notice was not available in relation to the caravans because of section 183(3) of the Town and Country Planning Act 1990, which provided that: “A stop notice shall not prohibit … (b) the use of land as the site for a caravan … as … a main residence”. However, the council were granted the injunction to restrain a breach of planning control. After consideration of the authorities, the judge concluded: “… In my judgment the development here was … unlawful and I do have jurisdiction to grant an injunction to restrain it notwithstanding that the time for compliance with the enforcement notice has not elapsed.” On the question of whether the jurisdiction should be exercised, he further stated: “…This is a proper case for an injunction to be granted”, making an order restraining the continued use or development of the land as a caravan park and a mandatory order that the caravans and generators stationed on the site be removed.
The defendants appealed on the ground, inter alia, that the planning legislation provided a complete code for the imposition of planning control. It was therefore not legitimate for the court to superimpose its own machinery for enforcement on that provided by the Act — particularly in an area where the Act had deliberately provided for the enforcement machinery to be suspended see: Pioneer Aggregate (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132. Further, the defendants submitted that the court’s parallel jurisdiction as to enforcement could not arise until the enforcement procedure itself had become available.
Held The appeal was allowed.
1. General recommendations were adopted as Government policy in Circulars 28/77 and 57/78 whereby “special concessions” were available to gypsies in the planning system. Para 4.13(d) of Circular 28/77 accepted that the needs of gypsies were such that there might be conflict with green belt or other planning policies.
2. There was no reported case or authority of an injunction to restrain a breach of planning control prior to an enforcement notice taking effect or, since 1968, before the issue of a stop notice. In Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment (supra), the House of Lords consider the question, stating: “Planning control is a creature of statute … it is a field of law in which the court should not introduce principles or rules derived from private law unless it be expressly authorised by Parliament or necessary in order to give effect to the purpose of legislation … Parliament has provided a comprehensive code of planning control.”
3. The courts therefore had refused to grant injunctions which a local authority should be reluctant to seek. There had to be something more than infringement before the assistance of civil proceedings could be invoked for the protection of the interests of the inhabitants of the area: Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] AC 754
4. While the council were entitled to serve the enforcement notices, they were not in a position to serve a stop notice: see section 183(3)(b). The time for appealing was still running so, although there was a breach of planning control, there was no illegality. The appeal against the enforcement notice might succeed and, in the light of section 183, Parliament did not contemplate action before the determination of the appeal and while the procedures were taking their due course. In the instant case, the work on the site had gone ahead with such speed that the judge felt it should be stopped. Moreover, the statutory provision regarding a stop notice was inapplicable under section 183. In view of that provision, the plain intention of Parliament must have been not to evict any person pending an appeal against an enforcement notice. In those circumstances the court had no jurisdiction to grant an injunction.
Patrick Clarkson QC and Mark Phillips (instructed by the solicitor to Doncaster Borough Council) appeared for the plaintiffs; and Barry Payton (instructed by Hammond Studdards, of Leeds) appeared for the defendants.
