Injunction — Use of land as gypsy caravan park without planning permission — Enforcement notice served but under appeal — No power to serve stop notice — Local planning authority obtaining interlocutory injunction — Appeal against injunction — Whether jurisdiction to grant where development prima facie unlawful but not illegal — Effect of amendments made by Planning and Compensation Act 1991
The first
defendant, Mr Green, proposed to develop land at Owston, near Doncaster, as a
gypsy caravan park. He was told by the plaintiff council that he required
planning permission and that the site was in the green belt. He considered his
best course was to establish the site first and then make the necessary
application. On June 7 1991 the council, having learned that mains water and
electricity were being connected to the site, sent a warning letter to Mr Green
informing him of their intention to seek an injunction to restrain the
development. Despite that letter, development continued with the construction
of an access road, the laying of 30 hardstandings and sanitary drainage and the
provision of a temporary generator. Large residential caravans then moved on to
the site. By the time the planning application was received by the council on
June 24 the site was more or less fully established.
On July 9 1991
the council served two enforcement notices, to take effect on August 13, one
requiring the owners and occupiers to discontinue the use of the land for the
purpose of stationing residential caravans and the other relating to the
operational development that had been carried out. On the same date they issued
a writ and applied for an interlocutory injunction restraining the use and
requiring the removal of the caravans from the land. On July 15 the application
was granted, the judge holding that he had jurisdiction to make the order
sought notwithstanding that the time for compliance with the enforcement notice
had not elapsed. The defendants appealed on the grounds that there was no
jurisdiction to grant an injunction where, first, the matter was specifically
dealt with by statute and section 183(3)(b) of the Town and Country Planning
Act 1990 (as it then was) precluded the local planning authority from serving a
stop notice to prohibit the particular use and, second, where there was no
history of previous breaches of planning control in relation to the land.
aHppeal was allowed.
Where
Parliament had specifically provided an exception from the power otherwise
given to serve a stop notice and where the activities, though unlawful, were not
yet illegal and might not be illegal if appeals against the enforcement notices
succeeded and where there had been no constant breach of any previous
enforcement notices or loss of appeals
an injunction while an appeal against the relevant enforcement notice was still
pending. The plain intention of Parliament was that there should be no eviction
of a person from his residence, or of his caravan occupied by him as his only or
main residence from any land, on planning grounds, pending the hearing of an
appeal against the enforcement notice. To achieve such an eviction by the grant
of an injunction would be wholly contrary to that intention: see pp 68F-69A and
69D-G.
Per curiam: The position would be different once the provisions of sections 3
and 9 of the Planning and Compensation Act 1991 were in force: see pp 64F-65C,
69A-C and 69H.
Decision of
Judge Maddocks reversed.
to in the judgments
Attorney-General v Smith [1958] 2 QB 173; [1958] 3 WLR 81; [1958] 2 All ER
557; (1958) 56 LGR 295; 9 P&CR 439
Harrison v Tew [1990] 2 AC 523; [1990] 2 WLR 210; [1990] 1 All ER
321, HL
Kent
County Council v Batchelor (No 2) [1979] 1
WLR 213; [1978] 3 All ER 980; (1977) 76 LGR 714; 38 P&CR 184; [1978] JPL
179
Official
Custodian for Charities v Parway Estates
Developments Ltd [1985] Ch 151; [1984] 3 WLR 525; [1984] 3 All ER 679;
(1984) 48 P&CR 125; 270 EG 1077, [1984] 1 EGLR 63,CA
Pioneer
Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984) 82
LGR 488; 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183; [1984]
JPL 651, HL
Runnymede
Borough Council v Ball [1986] 1 WLR 353;
[1986] 1 All ER 629; (1985) 84 LGR 481; 53 P&CR 117; [1986] JPL 288, CA
Stafford
Borough Council v Elkenford Ltd [1977] 1 WLR
324; [1977] 2 All ER 519; (1976) 75 LGR 337; [1977] JPL 170, CA
Appeal against
decision of His Honour Judge Maddocks
This was an
appeal by the defendants, William Green and 52 others, against a decision of
His Honour Judge Maddocks, sitting as a judge of the Chancery Division in
Manchester on July 15 1991, whereby, on motion by the plaintiffs, Doncaster
Borough Council, he granted an interlocutory injunction to restrain the
defendants from continuing the use or development of land at Rockley Lane,
Owston, near Doncaster, as a caravan park and requiring them, within 14 days,
to remove all caravans and an electricity generator from the land.
(instructed by Hammond Suddards, of Leeds) appeared for the defendants.
Clarkson QC and D Mark Phillips (instructed by the director of legal and
administrative services, Doncaster Borough Council) appeared for the
plaintiffs.
following judgments were delivered.
DILLON LJ: I will ask Glidewell LJ to give the first judgment in this case.
GLIDEWELL
LJ: This is an appeal against a decision of His
Honour Judge Maddocks, sitting as a High Court Judge, who gave judgment in
Manchester on July 15 1991 on motion by the plaintiffs, Doncaster Borough
Council, when he ordered upon the usual undertakings that:
. . . the
Defendants shall:
1. after the
period of 14 days be restrained from continuing (whether by themselves or by
their servants or agents or any of them or otherwise howsoever) the use or
development of land or any part thereof,
– and then the
land was described; it is at Rockley Lane, Owston, near Doncaster –
as a caravan
park.
2. within the
period of 14 days remove from the said land all caravans; and remove the electricity
generator currently situate on [one of the fields and housed on the said land].
The learned
judge stayed his order for 14 days to enable the defendants to appeal to this
court and upon such appeal being lodged he stayed it until the final order of
this court.
The facts
found by the judge and which essentially were not in dispute – though it is
right to say that the first respondent, Mr Green, in an unspecific paragraph in
his affidavit, in effect said that he did not by any means admit everything the
council were saying – are as follows.
Doncaster
Borough Council are the local planning authority for the area in which the
site, the subject of these proceedings, lies. In the approved South Yorkshire
structure plan the whole area is a green belt. Mr Green, the first respondent,
is a gypsy. Some time before May 1991, he purchased the fields which comprised
the site subject to the injunction. According to the judge, and it is not
challenged, he purchased these fields with the intention from the outset of developing
them as a gypsy caravan site.
In April 1991,
Mr Green spoke to the council’s planning department concerning his plans. He
was told that it would be necessary for him to submit an application for
planning permission for the development he was describing. He was also told
that the fields lay within the green belt and no doubt warned that the effect
of being within the green belt is that there is a very strong presumption
against planning permission being granted for the development he proposed. Mr Green
in a later telephone conversation indicated that, despite what had been said to
him, he thought that his best course would be to establish the gypsy site and
then to make the necessary planning application. He realised that if planning
permission were granted it would be retrospective and he thought that if the
site were established he would be able to convince the Secretary of State that
it was tidy and well run and appreciated, and that this would be an advantage
to him when seeking to gain planning permission on appeal, if indeed it had
been refused by the council.
At the end of
May 1991, the council were notified that Mr Green had applied for an
electricity supply for the site and they learned that the water authority were
laying on supplies of mains water. On June 7 1991, the council sent a warning
letter to Mr Green informing him of their intention to apply for an injunction
to restrain him from developing the
within 14 days. On June 19, 12 days later, agents on behalf of Mr Green
submitted the planning application for permission to develop the land as a
private gypsy caravan site; that was received by the council on June 24.
The council,
on June 20, sent to Mr Green a statutory notice under section 330 of the Town
and Country Planning Act 1990 requiring him to give particulars as to the
ownership of the land. Moreover, they told him that unless they had his
undertaking not to develop the land within 14 days, they proposed to take legal
proceedings for an injunction.
However,
before the council were able to take that step, over the following weekend,
from Friday June 21 to Sunday June 23, the works necessary to establish this
site as a caravan site took place. An access road was laid down the centre line
of the rectangular strip on the site, giving access to Rockley Lane;
hardstandings for 30 caravan pitches were laid; water pipes were sunk; sanitary
drains were laid to a tank sunk in the ground and the whole was made ready to receive
caravans; a temporary electricity generator was set up. Within a few days a
number of caravans moved in, most of them permanent residential caravans. By
the time the planning application was received, as the judge said, ‘the site
was thus more or less fully established . . . With the caravans, of course,
came their owners and families’.
On July 9
1991, the council took action of two kinds. First, they served two enforcement
notices, one relating to the change of use of the site for the purpose of stationing
thereon residential caravans; that notice, which was dated to take effect on
August 13, required the owners and occupiers to discontinue the use of the land
for the purpose of stationing residential caravans and to remove all
unauthorised caravans stationed on the land from it. A second notice was served
relating to development by the construction of the roadway, the underground
water and electricity and sewage service pipes and the various sheds on the
site containing sanitary and washing facilities and the laying of the hardcore
and the provision of an electricity supply generator; the owners and occupiers
were required to remove all those works from the site, making good the land to
its original condition. That notice, again, was expressed to take effect on
August 13 1991.
Under the
statutory provisions, the persons upon whom an enforcement notice is served
have the right to appeal against it to the Secretary of State for the
Environment before it takes effect and so the appeal had to be served not later
than August 13 1991.
Second, the
council started the proceedings in which this appeal is part, that is to say,
on July 9 1991 a writ was issued accompanied by a statement of claim, to which
altogether there are some 53 defendants – Mr Green together with the occupiers
of the various caravans – and the facts in the statement of claim were set out
more or less as I have already recited them. On the same day, the council also
served a notice of motion seeking two injunctions in similar terms to the injunction
granted by the judge.
At that stage
– the stage when the matter came before the judge – first, there had been on
the land development of two kinds: operational
constructing a roadway and hardstandings for caravans and construction of
buildings and toilet facilities; and, second, development by the change of use
of the land to use as a site for permanent caravans.
Next, it is
clear that prima facie both developments required planning permission,
were not the subject of planning permission and, therefore, were carried out in
breach of planning control: see section 172(3) of the Town and Country Planning
Act 1990. It follows that the council were entitled to decide to serve the two
enforcement notices by virtue of section 172(1).
Third, the
enforcement notices had indeed, at the time when the judge was hearing the
matter and giving judgment, been served but had not yet come into effect and
therefore the time for appeal against them was still running. Indeed, at that
time no appeals had been entered. We have not actually been told whether they
have been now, but I think it is a fair assumption that they probably have
been. The effect of that is that, by virtue of section 175(4) of the 1990 Act,
the enforcement notices are of no effect pending the final determination of the
appeal.
Next, when,
but only when, the enforcement notices come into force, a failure to comply
with either of them will be an offence (section 179). It follows, therefore,
that, to use the terminology of various previous decisions, to one of which I
shall refer, at the present time the developments on the site are prima
facie unlawful but not illegal, that is to say, there has so far been no
breach of the criminal law arising out of the carrying out of those
developments.
Section 183 of
the 1990 Act provides for the service of stop notices. Section 183(1) reads:
Where in
respect of any land the local planning authority –
(a) have served a copy of an enforcement notice
requiring a breach of planning control to be remedied; but
(b) consider it expedient to prevent, before
the expiry of the compliance period, the carrying out of any activity which is,
or is included in, a matter alleged by the notice to constitute the breach,
they may at
any time before the notice takes effect serve a notice prohibiting the carrying
out of that activity on the land, or any part of it specified in the notice.
By the time
the council served the enforcement notices, I assume they took the view that
there was no point in trying to serve stop notices relating to the operational
development, the laying of the roadway and the hardstandings and the
construction of the buildings, because that was already complete. However, the
position with regard to the use of the land was different. That fell within
subsection (3) of section 183, which provides:
A stop notice
shall not prohibit –
(a) the use of any building as a dwellinghouse,
or
(b) the use of land as the site for a caravan
occupied by any person as his only or main residence, or
(c) (is not relevant).
Since it seems
that all, or certainly the majority of, the occupants of these caravans were
using them and occupying them as their only or main residence, the effect of an
enforcement notice requiring the use of the land as a site for those caravans
to cease and a stop notice to that effect, requiring them to stop that use
immediately, would apparently fall within and thus be prohibited by section
183(3)(b). For that reason the council felt themselves unable, and I think
correctly took the view that they were not in a position, to serve a stop
notice requiring the use of the land as a caravan site to cease. It is, and I think
they make no bones about it, for that reason that they resorted to the courts.
They started the action and they sought an injunction to do that which they
could not do under the statutory provision.
I no doubt do
an injustice to Mr Payton’s case by summarising it very shortly, but
nevertheless it can be summarised as follows. First, an appeal against the
enforcement notices may succeed. It is not necessary to consider how likely it
is to succeed; obviously there is a chance at least that each appeal will
succeed and the learned judge proceeded on that basis.
Second,
planning control is imposed by a statutory comprehensive code. Mr Payton relies
upon a short passage from the speech of Lord Scarman, with which other members
of the House of Lords agreed, in Pioneer Aggregates (UK) Ltd v Secretary
of State for the Environment [1985] AC 132, where his lordship said at p
140H:
Planning
control is the creature of statute. It is an imposition in the public interest
of restrictions upon private rights of ownership of land. The public character
of the law relating to planning control has been recognised by the House in Newbury
District Council v Secretary of State for the Environment [1981] AC
578. It is a field of law in which the courts 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 the
legislation. The planning law, though a comprehensive code imposed in the
public interest, is, of course, based on the land law. Where the code is silent
or ambiguous, resort to the principles of the private law (especially property
and contract law) may be necessary so that the courts may resolve difficulties
by application of common law or equitable principles. But such cases will be
exceptional. And, if the statute law covers the situation, it will be an
impermissible exercise of the judicial function to go beyond the statutory
provision by applying such principles merely because they may appear to achieve
a fairer solution to the problem being considered. As ever in the field of
statute law it is the duty of the courts to give effect to the intention of
Parliament as evinced by the statute, or statutory code, considered as a whole.
Parliament
has provided a comprehensive code of planning control.
Mr Clarkson
QC, for the council, argues quite correctly that the subject-matter at issue in
the Pioneer Aggregates case was a long way away from the subject-matter
of the present appeal. That case was concerned with, and is authority on, the
proposition that the benefit of a planning permission may not be abandoned.
Nevertheless, Mr Payton submits, and for my part I agree with him, that, as a
broad statement on general principle, Lord Scarman’s dictum is indeed to
be followed and applicable
Country Planning Acts.
Mr Payton’s
submission continues that the court has no jurisdiction to grant an injunction
where, first, the matter is specifically dealt with by statute but the
particular case is excepted from the powers given to the local authority and,
second, there is no history of previous breaches in relation to the land.
Before I turn to consider the authorities, such as they are, relating to this issue,
I think it right to say something about the legislative history of stop
notices.
In the Town
and Country Planning Act 1947 there was provision for the service of
enforcement notices but not of stop notices. There was no way in which the
local planning authority could by the use of statutory powers prevent the
carrying out of development, or require continuing development to cease
immediately or at any time, before the appeal against the enforcement notice,
if there was to be one, had been determined. That situation continued when the
1962 Act came into force.
Stop notices
were introduced by section 19 of the Town and Country Planning Act 1968. In
that statute they applied only to operational development, that is the carrying
out of building, engineering or other operations, and not to changes of use,
and that was still the position when the Town and Country Planning Act 1971 was
brought into force. Stop notices were applied to change of use development by
the Town and Country Planning (Amendment) Act 1977, which substituted a new
section 90 in the 1971 Act. That provided that stop notices can cover breach of
planning control consisting of unauthorised changes of use as well as
operational development. The new section 90 contained a subsection (2), which was
in similar, though not quite identical, terms to the present section 183(3) of
the 1990 Act, that is to say, it excepted from the application of stop notices
use of buildings as dwellinghouses and use of land as the site for a caravan
occupied by a person as his sole or principal residence; and that is the
situation today. However, our attention has been drawn to the Planning and
Compensation Act 1991, which amends or, to be more precise, will amend the law
in this respect. That Act received the Royal Assent on July 25 1991 but is to
come into force on a date or dates appointed by order and the provisions to
which I am about to refer are not yet in force1.
1They were brought into force on January 2 1992 by the Planning and
Compensation Act 1991 (Commencement No 5 and Transitional Provisions) Order
1991 (SI 1991 No 2905).
Section 9 of
the 1991 Act provides a new section 183 of the 1990 Act relating to the service
of stop notices and, in particular, section 183(4) in future will provide,
instead of the present 183(3):
(4) A stop notice shall not prohibit the use of
any building as a dwellinghouse.
Nothing is
going to be said about stop notices not prohibiting the use of caravans,
whoever is going to occupy them. So when that provision comes into force the
problem that confronts the council, and confronted
they will be able to utilise the power contained in section 183 as it will then
be.
Second, a new
section is inserted in the 1990 Act by section 3 of the 1991 Act. It will be
section 187B, subsections (1) and (2) of which provide:
(1) Where a local planning authority consider it
necessary or expedient for any actual or apprehended breach of planning control
to be restrained by injunction, they may apply to the court for an injunction,
whether or not they have exercised or are proposing to exercise any of their
other powers under this Part.
(2) On an application under subsection (1) the
court may grant such an injunction as the court thinks appropriate for the
purpose of restraining the breach.
I go back to
the present position and the previous authorities. We were referred to a number
but, for my part, I find it necessary to make reference to only two other than Pioneer
Aggregates. The first is a decision of Lord Goddard CJ, sitting in the
Queen’s Bench Division, Attorney-General v Smith [1958] 2 QB 173.
That was a caravan case. The defendant owned some land; he started using it without
planning permission for the siting of caravans; he had an enforcement notice
served on him; he applied for permission to develop the land as a caravan site;
permission was refused; he appealed and lost the appeal because it lay within
the green belt. So far the facts are quite remarkably similar to those in the
present case and, indeed, many other caravan site cases. He did not take the
caravans away; the enforcement notice had come into force; he made another
application for planning permission; that was refused; he was then prosecuted
and fined; finally he moved the caravans to the next-door field; he was again
convicted and fined. He then applied for planning permission in respect of the
next-door field; that was refused; he applied for planning permission for a
third field; that was refused, and so on; and eventually the planning
authority, no doubt losing patience after a lapse altogether from start to
finish of what looks like two years, issued a writ, on the relation of the
Attorney-General, for an injunction restraining the defendants from using or
permitting to be used any land within the boundaries of the council as a
caravan site without the prior grant of planning permission.
In granting
the injunction as sought, the Lord Chief Justice said at p 185:
It has been
submitted to me that because the Act provides penalties, and because there is
no offence committed before an enforcement notice has been disregarded, I ought
not to grant an injunction. I think that the cases which have been cited –
particularly Attorney-General v Wimbledon House Estate Co Ltd
[1904] 2 Ch 34, cited and followed by Devlin J in Attorney-General v Bastow
[1957] 1 QB 514 – show that, although a statute may provide a penalty for acts
done in breach of it, if it is a matter of public right, then the
Attorney-General is entitled, on behalf of the public, to apply for an
injunction. The Town and Country Planning Act, 1947, is an Act which is
designed to confer a benefit on the public: It is for the orderly
the development of too crowded areas, to prevent the development of industrial
buildings and plant in what should be a residential district, and for the
mapping out of residential districts and industrial districts and so forth. It
is obviously an Act which is designed for the public good and can be used for
great public advantage. Therefore, if a defendant shows by his conduct that he
intends to avoid the Act and act in breach of it so far as he can and for as
long as he can, then the Attorney-General is entitled to an injunction such as
was granted in the cases which have been cited to me.
He then
summarised the facts briefly and he said:
That shows an
intention by the defendants, who have been refused planning permission time and
time again, to act in defiance of the Town and Country Planning Act, and to use
its machinery not for the purpose of making genuine applications for permission
but for the purpose of delay. In the first instance I would not say that the
first defendant was not perfectly entitled to appeal to the Minister, but when
he got the result of the appeal the defendants knew quite well that the
Minister was upholding the policy which the council were evidently following –
that is to say, not to permit the use of land for caravans within their area
because it was in the Green Belt. The Minister upheld that policy and yet the
defendants went on in this way.
I think,
therefore, that this is a case in which I have jurisdiction to grant an
injunction; and if I have such jurisdiction I most certainly, as a matter of
discretion, will grant it.
I note, as is
obvious from the date, that that case was decided 19 years before the law was
amended so as to provide that a stop notice might apply to change-of-use
development and amended to bring in the accompanying provision. Stop notices
might not be served relating to the use of land for the stationing of a caravan
to be used as a permanent residence, as somebody’s sole or principal residence.
After those
provisions came into force, however, there was the second decision to which I
think it right to refer, the decision of this court in Runnymede Borough
Council v Ball [1986] 1 WLR 353, again a caravan site case and in
this case a gypsy caravan site case; again land within the green belt. Reading
from the headnote:
The
defendants . . . began to construct an access road and carry on other
development on the land without planning permission. The local planning
authority served enforcement and stop notices on the defendants with the aim of
preventing their use of the land as a gypsy caravan site . . . The defendants
continued their activities but the local authority, instead of [prosecuting] instituted
civil proceedings . . .
By this time
they were empowered to do so in their own name, under section 222 of the Local
Government Act 1972, instead of suing on the relation of the Attorney-General.
The local authority under that provision applied for injunctive relief and for
an interlocutory injunction. The judge refused the application on the ground
that it was not a case where the local authority were entitled to claim an
injunction since they could have proceeded by way of prosecution. The appeal was
allowed.
I should say
before I come to the judgments that it seems, though the matter is not perhaps
entirely clear, in so far as the landowner was himself occupying one caravan on
the site already, that was not the subject of a stop notice. But since no other
caravans had either been brought on to the site or occupied, stop notices were
served in respect of them because presumably it could not be said that the land
was being used as sites for caravans, other than the one, which were being
occupied as sole or principal residences.
In the course
of his judgment, Fox LJ said at p 359A:
In the present
case the first defendant and his co-owners purchased the land with the
intention of using it as a gipsy caravan site. That intention they pursued with
absolute determination thereafter and in the face of the long series of
enforcement notices, stop notices and warnings which were the consequence of
their activities on the land. It was only the application to the court and the
consequent grant of injunctions and giving of undertakings which called a halt
and prevented the defendants bringing their caravans on to the land. That the
defendants were prepared to disregard the law so long as they thought it to
their benefit to do so, there is, I think, no doubt.
There remains
the question whether prosecutions should have been instituted before the
plaintiff resorted to the civil courts. The penalties are not insubstantial. I
think that the plaintiff is right in its assertion that it would have been
futile to have sought to prevent the defendants bringing their caravans on the
land by instituting prosecutions. Prosecutions would have been too slow. The
caravan site would have been well established (with increasing risks of long
term alteration of the character of the land) before the proceedings, including
appeals, were completed. And I think that the plaintiff would be justified in
doubting the effectiveness of a financial penalty against gipsies.
Purchas LJ
said at p 363D, having quoted a judgment of Talbot J in Kent County Council
v Batchelor (No 2) [1979] 1 WLR 213:
With respect
I would adopt the approach of Talbot J in so far as he says that the duty of
the council under the planning legislation is not merely to enforce penalties
for past offences but is also to do all within their power to ensure through
properly observed planning control the natural amenities of their area. This
approach is, in my judgment, in accord with the spirit and intent of the speech
of Lord Templeman in the Stoke-on-Trent case [1981] AC 754 and the other
authorities to which reference has been made. In cases where it is necessary to
resort to relief at civil law in order to prevent irreparable damage, which
might well not be prevented by process in the magistrates’ court, then, in my
judgment, a local authority should be able to act under section 222 of the Act
of 1972. This right should not be restricted to any particular class or classes
of infringement, but must depend upon the particular facts of each individual
case. Obvious instances where section 222 applies are those cases where the
conduct, past and intended, of the offender show that process in the
magistrates’ court will be inadequate to afford protection to the interests of
the local inhabitants (‘the deliberate and flagrant flouting cases’).
Sir Roger
Ormrod said at p 366C, quoting Bridge LJ (as he then was) in Stafford
Borough Council v Elkenford Ltd [1977] 1 WLR 324, at p 330B:
‘The reason
why it is ordinarily proper to ask whether the authority . . . has first
exhausted the statutory remedies is because in the ordinary case it is only
because those remedies have been invoked and have proved inadequate that one
can draw the inference, which is the essential foundation for the exercise of
the court’s discretion to grant an injunction, that the offender is . . .
‘deliberately and flagrantly flouting the law’.’
Then Sir Roger
continued:
It is
beginning to sound like a test of jurisdiction, and so Lord Fraser of
Tullybelton treated it in the Stoke-on-Trent case, at p 767. Lord
Templeman, at p 776, also quoted the above passage from Bridge LJ’s judgment,
but the ratio of his judgment does not involve this striking phrase. The basis
of his judgment, in my opinion, is to be found in the passage in his speech
which is quoted above.
Then a little
lower Sir Roger said:
. . . I would
not hesitate to describe the conduct of the defendants or some of them as
deliberate and flagrant flouting of the law.
I note that in
the present case the learned judge, in a judgment which I consider otherwise
wholly admirable, did not in terms consider the issue before him as one of
whether he had jurisdiction to grant an injunction. He said towards the end of
his judgment:
As matters
stand, I treat the development which has taken place and is continuing as being
unlawful. If the action goes to trial the issue whether there should be an
injunction will depend on the outcome of the planning appeal. For present
purposes I accept Mr Payton’s submission that I should act on the basis that it
could go either way. Where then does the balance of convenience lie in the
meantime?
If I view the
case as one of preserving the status quo then that status quo
must be the existing lawful agricultural use of the field. The defendants do
not argue that there has been any undue delay by the council.
If it comes to
the question of balance of convenience, I would not, even if I thought this
court were entitled to, disagree with the learned judge’s evaluation; indeed,
Mr Payton realistically does not seek to persuade us to do so. But it is the
question of jurisdiction on which, with real reluctance, I part company with
the judge. I can well see that, faced as he was with the situation in which,
having been warned that he required planning permission to carry out the
development, having been warned that if he did the council would serve
enforcement notices and seek injunctions, the first respondent nevertheless
went ahead and carried out development and, moreover, arranged to do so with
such speed that the council did not have the opportunity to bring proceedings
against him until at least the laying of the hardcore and the setting-up of the
huts was complete, the judge might well take the view that the law was being
flouted. But where Parliament, as in this case, has specifically provided an
exception from the power that it otherwise gives to serve a stop notice and
where the activities, though unlawful, are not as yet illegal and may not be
illegal, that is if the appeal against the
any previous enforcement notices or any loss of planning appeals against
refusals of planning permission in the past, in my view the court at present
has no power to grant an injunction to fill the gap.
I am, I must
say, supported in this view by the fact that in enacting the 1991 Act
Parliament has apparently seen that the 1990 Act and its predecessor, the 1977
Act, did indeed contain a gap through which developments of this particular
type could drive. Parliament has sought to stop the gap in the 1991 Act by the
provisions to which I have already referred in that legislation. When
Parliament brings those provisions into force, as I see it, first of all a
council, in the position of the council in the present case, will be perfectly
empowered to serve a stop notice and, second, as I see it, at the same time the
Act itself will make it clear that they will be empowered to seek injunctive
relief. But that is for the future.
For the
present, I regretfully come to the conclusion, as I have already indicated,
that the council have no power to seek these injunctions, or the court to grant
them, and I would, therefore, allow the appeal.
STUART-SMITH
LJ: I agree.
DILLON LJ: I also agree. The procedure of the stop notice is the statutory
procedure for enforcing planning control where that is expedient at a time when
an enforcement notice has been served but there has been an appeal brought
against the enforcement notice and, under section 175(4) of the 1990 Act, the
enforcement notice is to be of no effect pending the final determination or the
withdrawal of the appeal. But under section 183(3) a stop notice is not to
prohibit the use of any building as a dwellinghouse or the use of land as a
site for a caravan occupied by any person as his only or main residence. The
plain intention of Parliament must therefore have been that there should be no
eviction of a person from his residence, or of his caravan occupied by him as
his only or main residence from any land, on planning grounds pending hearing
of the appeal against the enforcement notice. It would be wholly contrary to
that intention of Parliament if the courts could achieve such an eviction by
injunctions, notwithstanding that an appeal against the relevant enforcement
notice is still pending. This approach is in line with the view taken by the
courts, in other fields of law, of the effect on the inherent jurisdiction of
the court of negative provisions enacted by Parliament where Parliament has
stepped in with particular legislation in a particular area: see Harrison
v Tew [1990] 2 AC 523 and Official Custodian for Charities v Parway
Estates Developments Ltd [1985] Ch 151.
I conclude
that the court has no jurisdiction to grant these injunctions while the appeal
against the enforcement notice is pending and I would, accordingly, also allow
this appeal. The position will be very different when the 1991 Act comes into
force.
Appeal
allowed; order below set aside; plaintiffs to pay defendants’ costs in Court of
Appeal and below; application for leave to appeal to the House of Lords
refused.
