Injunction — Use of land in breach of planning control — Enforcement notices served but under appeal — Whether appropriate case for grant of interlocutory injunction
The defendant,
William Davies, was the owner of land abutting the B3002 near Headley Down,
Bordon, Hampshire (‘the site’). The land was opposite Ludshott and Bramshott
Commons, both of which were owned by the National Trust and constituted a
designated site of special scientific interest. The site itself had been
included by Hampshire County Council in a countryside heritage area. The local
planning authority, East Hampshire District Council, alleged that the site was
being used by the defendant, unlawfully and in breach of planning control, as a
showman’s winter quarters by placing on the land five residential caravans and
11 other vehicles or trailers.
In 1981
temporary planning permission had been granted to a Mr Swoish for the placing
of a mobile home on an area of land including the site. In 1985, following the
expiry of that permission, the council served an enforcement notice requiring
permanent discontinuance of the use of the land, including the site, ‘as a site
for a mobile home’. An appeal against that notice was dismissed. The defendant
bought the site from Mr Swoish in September 1989. On January 8 1990 the council
issued three summonses against the defendant in respect of his failure to
comply with the 1985 notice. On January 10 the council issued a writ seeking, inter
alia, an injunction restraining the defendant: (a) from occupying or
residing in a mobile home or residential caravan on the site; and (b) from
using the site for the storage of mobile homes, residential caravans, vehicle
trailers and showground or funfair equipment. On January 22 the defendant
applied for planning permission to use the site as a showman’s winter quarters.
On January 23 the writ was served and on the same day the three summonses came
before the Alton justices and were adjourned to enable the defendant to obtain
legal advice. On February 6 Mr Patrick Bennett QC (sitting as a deputy judge of
the Queen’s Bench Division) dismissed an application by the council for an
interlocutory injunction, holding that, as a matter of construction, the 1985
notice was not wide enough to cover the placing of a mobile home on the site by
the defendant. On March 6 the council gave notice of appeal against this
decision. On March 7 the defendant’s application for planning permission was
refused and on March 23 the council served three further enforcement notices
alleging breaches of planning control arising from the present use of the site.
Appeals by the defendant against the enforcement notices and the refusal of
planning permission were due to be heard on December 4 1990.
dismissed.
The
application for an interlocutory injunction had to be determined in accordance
with the principles set out in American Cyanamid Co v Ethicon Ltd
[1975] AC 396. It was not in dispute that the defendant’s activities were in
breach of planning law but there was a serious issue to be tried as to whether
it was a proper case for the grant of a permanent injunction: see p 11E.
Damages would be a wholly inappropriate and inadequate remedy. However, the
effect of enforcement by the criminal law had not been tested: see p 12B-C. The
defendant had not done any permanent damage to the land. In the circumstances
the balance of convenience was against the grant of an injunction having regard
to the onset of the winter season, the difficulties the
of the season and the fact that the planning and enforcement notice appeals
were only a few weeks away: see pp 12D-13A.*
*Editor’s
note: On January 28 1991 the planning and enforcement notice appeals were
allowed. The enforcement notices were quashed and personal planning permission
was granted for use of the site as showmen’s winter quarters until March 1993,
subject to conditions: see (1991) 6 PAD 304.
to in the judgments
American
Cyanamid Co v Ethicon Ltd [1975] AC 396;
[1975] 2 WLR 316; [1975] 1 All ER 504, HL
Stoke-on-Trent
City Council v B&Q (Retail) Ltd [1984]
AC 754; [1984] 2 WLR 929; [1984] 2 All ER 332; (1984) 82 LGR 473, HL
Appeal against
decision of Mr Patrick Bennett QC
This was an
appeal against a decision of Mr Patrick Bennett QC, sitting as a deputy judge
of the Queen’s Bench Division, on February 6 1990 whereby he had dismissed an
application by the plaintiffs, East Hampshire District Council, for an
interlocutory injunction.
(instructed by Sharpe Pritchard, agents for the solicitor to East Hampshire
District Council) appeared for the appellants.
Head (instructed by Fox & Kent, of Chichester) appeared for the respondent,
William Davies.
following judgments were delivered
FOX LJ: This is an appeal by East Hampshire District Council (‘the council’)
from an order of Mr Patrick Bennett QC, sitting as a deputy judge of the
Queen’s Bench Division, dismissing the council’s application for an interlocutory
injunction.
The case
concerns land at Bowleswood Farm, Headley, Bordon, Hampshire. I will refer to
it as ‘the site’. It is within the council’s district. The council bring the
action under the powers conferred by section 222 of the Local Government Act
1972. The council are a local authority within the provisions of section 272 of
that Act.
The site was
formerly part of a larger agricultural estate and more recently has been
divided into sub-plots of two or three acres each. The site is situate on the
northern side of the B3002. Directly opposite the land, and on the south side
of the B3002, are Ludshott and Bramshott Commons, both of which are owned by
the National Trust and which constitute a designated site of special scientific
interest covering about 370 ha and including extensive tracts of heathland. The
site itself has been included in Hampshire County Council’s Bramshott and
Ludshott countryside heritage area. That designation is at present on a
non-statutory basis. The public has access to the National Trust land. The site
is not obscured from the public road except by a small hedge. There is also a
2-m high steel mesh fence bordering the site but it does not prevent persons
passing on the public road from seeing the whole extent of the site.
It is the
council’s case that part of the site is being used by the defendant unlawfully
and in breach of the planning legislation as an area for a showman’s winter
quarters. That involved the placing of vehicles, including mobile homes, on the
site and, say the council, constitutes a material change of use. That change of
use was unauthorised and a breach of the planning laws. There are upon the land,
according to the evidence, five residential caravans or mobile homes, together
with 11 assorted vehicles or trailers. The council’s view is that these
vehicles are a particularly offensive sight in this area of highly attractive
countryside.
A planning authority
(the council in the present case) may issue an enforcement notice in respect of
a breach of planning control requiring the breach to be remedied. A person
having an interest in the land may appeal against the notice and, if he does,
the notice has no effect pending the final determination or withdrawal of the
appeal (see section 88(10) of the Town and Country Planning Act 1971 [now
section 175(4) of the Town and Country Planning Act 1990]). An enforcement
notice has effect against the owner of the land for the time being but, since
appeals must be within four weeks from the notice, the owner for the time being
may be out of time for appealing. If an effective enforcement notice is not
complied with, the person in default is liable to a fine.
On October 5
1981 temporary planning permission was granted to a Mr Swoish for the placing
of a mobile home on an area including the site. On October 5 1984 the temporary
planning permission expired.
On January 3
1985 an enforcement notice (‘the 1985 enforcement notice’) was served, taking
effect on February 14 1985. This required that there be permanent
discontinuance ‘of the use of the land as a site for a mobile home’ and the
removal of the mobile home from the land. Mr Swoish appealed against that
enforcement notice. The appeal was dismissed on October 8 1985.
On September
22 1989 the defendant purchased from Mr Swoish an area of land which included
the site. Mr Swoish retained about 13 acres.
On November 7
1989 Mr Curtis, a development inspector in the planning department of the
council, visited the site and met the defendant, who told him that he intended
to use the land as a winter stop-over for his caravans and equipment. Mr Curtis
gave the defendant a copy of the 1985 enforcement notice. On November 24 1989 Mr
Curtis visited the site again and found on it five residential caravans or
mobile homes and 11 other vehicles or trailers.
On January 8
1990 the council issued three summonses against the defendant in respect of
failure to comply with the 1985 enforcement notice.
On January 10
1990 the writ in this action was issued. The relief sought was (inter alia)
an injunction restraining the defendant by himself, his servants or agents (a)
from occupying or residing in a mobile home or residential caravan or otherwise
howsoever on the site, and (b) from using the site for the storage of mobile
homes, residential caravans, vehicle trailers and showground or funfair
equipment.
On January 22
1990 the defendant applied for planning permission to use the site as a showman’s
winter quarters (that is to say from October 1 to March 31 each year). On
January 23 1990 the writ was served. On the same day, January 23, the three
summonses came before the Alton magistrates and were adjourned for the
defendant to obtain legal advice.
On February 6
1990 the present application for an injunction came before Mr Patrick Bennett
QC and was dismissed.
On February 20
1990 the three summonses again came before the Alton Bench and by consent were
adjourned sine die pending the determination of the present appeal.
On March 6
1990 the council gave notice of appeal against the decision of Mr Bennett.
On March 7
1990 the defendant’s application for planning permission was refused.
On March 23
1990 the council served three further enforcement notices upon the defendant in
respect of alleged breaches of planning control in consequence of the present
user of the site.
The decision
of the deputy judge turned largely on the effect of the 1985 enforcement
notice. The background to that notice was the planning
years from the date of the permission or until the dwelling ceased to be
occupied by the appellant (Mr Swoish), whichever should first happen, ‘the use
hereby permitted’ shall cease. The permitted use was the retention of a mobile
home on the land. Schedule 1 to the enforcement notice states the premises to
which the notice applies; those premises include the site. Schedule 2 states
the alleged breach of conditions, ie that the use of the land as a site for a
mobile home has not ceased after the expiration of the three-year period.
Schedule 3 states the steps required to be taken to remedy the breach, ie
‘permanently discontinue the use of the land as a site for a mobile home and
remove the mobile home from the land’.
The deputy
judge took the view that, as a matter of construction, the language of the 1985
enforcement notice was not wide enough to cover the placing of a mobile home on
the land by the defendant. He therefore held that the notice does not
necessarily have an application wide enough to include the admittedly unlawful
activities (of the defendant) on the land. In these circumstances he refused an
injunction.
Accepting that
there may be questions of construction as to the ambit of the 1985 enforcement
notice, I do not think it is appropriate to attempt to resolve them on an
interlocutory application or that their resolution in favour of the defendant
is sufficient to determine the present application. The 1985 notice and the
three notices served this year are a basis for criminal proceedings (assuming
them to be valid and enforceable according to their terms). As I have
mentioned, the 1990 notices are under appeal and, therefore, of no effect
pending the appeal. The 1985 notice, whatever its construction, adds little to
the council’s contention that the defendant’s present activities in any event
constitute unlawful development on the site and should be stopped until
judgment in the action or further order.
This is an
application for an interlocutory injunction and must be determined in
accordance with the American Cyanamid principles. As to those, there is,
in my view, a serious issue to be tried in the action. It is not, I think, in
dispute that the defendant’s activities are in breach of the planning law. The
issue to be tried is whether it is a proper case for the grant of a permanent
injunction. The next question is whether damages at law would be an adequate
remedy for the council. They would not. Damages are a wholly inappropriate and
inadequate remedy for a local authority in these circumstances. Next, would the
council’s undertaking in damages, if an injunction were granted but the council
lost at the trial, be an adequate remedy for the defendant? This gives rise to questions having regard to
the position of travelling showmen. But, in any event, the matter under the American
Cyanamid principles becomes a question of the balance of convenience (see American
Cyanamid Co v Ethicon Ltd [1975] AC 396 at p 408E). I will return to
that, but there is superimposed upon the question of the balance of convenience
a further question as to the appropriateness of granting injunctions at all to
a local authority in cases, such as the present, where Parliament has made special
provisions for penalties for breach of the relevant statutes.
In Stoke-on-Trent
City Council v B&Q (Retail) Ltd [1984] AC 754 (a case concerned
with breaches of the Sunday trading legislation) Lord Templeman, whose speech
was concurred in by the other members of the House, said at p 776 A-C:
The right to
invoke the assistance of the civil court in aid of the criminal law is a
comparatively modern development. Where Parliament imposes a penalty for an
offence, Parliament must consider the penalty is adequate and
that a local authority should be reluctant to seek and the court should be
reluctant to grant an injunction which if disobeyed may involve the infringer
in sanctions far more onerous than the penalty imposed for the offence. In Gouriet
v Union of Post Office Workers [1978] AC 435 Lord Wilberforce said at p
481, that the right to invoke the assistance of civil courts in aid of the
criminal law is ‘an exceptional power confined, in practice, to cases where an
offence is frequently repeated in disregard of a, usually, inadequate penalty .
. . or to cases of emergency . . .’ In
my view there must certainly be something more than infringement before the
assistance of civil proceedings can be invoked and accorded for the protection
or promotion of the interests of the inhabitants of the area.
Lord Templeman
went on to say that as a general rule a local authority should try the effect
of criminal proceedings before seeking the assistance of the civil courts but,
in the Stoke-on-Trent case, the council were entitled to take the view
that the traders would not be deterred by the maximum fine, which was
substantially less than the profit which could be made from illegal Sunday
trading.
The position
in the present case is as follows. First, the effect of the enforcement of the
criminal law has not been tested at all. No action can be taken by way of
prosecution in respect of the 1990 enforcement notices because their operation
is stayed by the statute pending the appeals against them. So far as the 1985
enforcement notice is concerned, proceedings before the magistrates have been
instituted by the council but have been adjourned, by consent of both sides,
pending the outcome of the present appeal.
Second, it is
a case in which the defendant has not done permanent or long-term damage to the
land and, pending the outcome of the planning and enforcement notice appeals,
he offers an undertaking not to do such damage (though the precise terms of any
such undertaking may require consideration).
Third, the
planning and enforcement notice appeals will be heard in a few weeks, ie on
December 4. The decision will not follow immediately but will be given within a
period estimated at between one and three months. I should mention that though
the matter was heard before the deputy judge in February it did not come before
the Court of Appeal until the Michaelmas Term. Apparently there was some
misunderstanding as to the intention of the council to pursue the appeal and it
was struck out of the list.
Fourth, the
defendant’s evidence is that he lives in a mobile home on the site and has
nowhere else where he can store his vehicles and equipment. The legislation, I
should observe, shows a degree of protectiveness in relation to a resident in a
mobile home in that section 90(2)(b) of the Town and Country Planning
Act 1971 [section 183(3)(b) of the 1990 Act] provides that a stop notice shall
not prohibit the use of land as a site for a caravan occupied by any person as
his only or main residence.
Moreover, the
showman’s winter season is now upon us and it is difficult for showmen to find
winter quarters. To turn the defendant out now when the planning appeals are
still pending could, if planning permission were granted on the appeals, cause
damage to the defendant which might be disproportionate to the temporary
protection of any public interest.
Looking at the
whole matter, I think that the balance of convenience is in favour of refusing
an injunction. I am not criticising the council for starting the proceedings;
they are properly concerned for the public interest in the amenities of the
countryside. Nor am I saying that the defendant has a licence to remain
indefinitely. I am saying only that, having regard to the onset of the winter
season, the difficulties likely to face the defendant in finding quarters
for the remainder of the season and the fact that the planning appeals are only
a few weeks away tilt the balance of convenience, in a case where the criminal
penalties have not been applied, in favour of the defendant at this stage.
I would,
therefore, dismiss the appeal.
BUTLER-SLOSS
LJ: I agree.
Appeal
dismissed with costs in the Court of Appeal; costs order below to stand.
