Caravan Sites Act 1968 — Gipsy sites — Enforcement notice required use of land to cease for the siting of caravans and as a residential site — Breach of enforcement notice — Whether injunctions can be granted to enforce planning controls
The respondents
are joint owners of certain land which they purchased for residential purposes.
Since 1987 the respondents lived on the land with their families in four
separate caravans. In 1987 the council issued and served an enforcement notice
on the respondents requiring them to cease use of the land for the siting of
residential caravans by October 27 1987. However, no enforcement action was
taken until April 1991, when the council decided to prosecute the respondents
for breach of the enforcement notice.
In January
1991 an official site for gipsy caravans was provided pursuant to section 6 of
the Caravan Sites Act 1968 known as the Seamer site. In the magistrates court
the respondents pleaded guilty and were fined.
In June 1991
the respondents applied for planning permission to retain caravans on the land;
this was refused by the council. The Secretary of State for the Environment, by
his inspector dismissed the respondents’ appeal. In August 1992 a further
information was laid by the council before magistrates in respect of further
breach of the enforcement notice to which the respondents pleaded guilty.
The council
sought an injunction pursuant to section 187B of the Town and Country Planning
Act 1990. The application for an injunction was dismissed by the court below.
The council appealed.
The deputy
judge erred in the factors he took into account exercising his discretion
whether to grant an injunction. The respondents had demonstrated an intention
to remain in residence on the land and were thereby breaking the law; in the circumstances
the council are entitled to ask for an injunction to require compliance with
the enforcement notice: see pp15H-16A.
The deputy
judge had misdirected himself by taking into consideration the merits of the
planning decision and whether a further application for planning permission by
the respondents might be successful; he wrongly considered, inter alia,
the availability of alternative accommodation for the respondents and the
evidence that the official site was unsuitable, and the hardship to the
respondents: see p17D.
to in the judgments
Buckley v United Kingdom Application 20340/92, European Ct
Guildford
Borough Council v Smith [1994] JPL 734, CA
Mole
Valley District Council v Smith (1992) 90
LGR 557; 24 HLR 442; 64 P&CR 491; [1992] 3 PLR 22, CA
Runnymede
Borough Council v Harwood (1994) 92 LGR 561;
[1994] 1 PLR 22, CA
Waverley
Borough Council v Hilden [1988] 1 WLR 246;
[1988] 1 All ER 807
Waverley
Borough Council v Marney (1995) 93 LGR 86
Appeal against
decision of Briggs J
This was an
appeal by the appellants, Hambleton District Council, against the decision of
Briggs J in refusing to grant an injunction to restrain a breach of planning
control.
QC and Paul Stinchcombe (instructed by the solicitor to Hambledon District
Council) appeared for the appellants.
Williams (instructed by Ward Hadaway, of Durham) appeared for the respondents,
Graham Bird and David Floyd.
following judgments were delivered.
BALCOMBE LJ: I will ask Pill LJ to give the first judgment.
PILL LJ: This is an appeal by Hambleton District Council (‘the council’)
against the refusal by Judge Briggs, sitting at Middlesbrough County Court on
February 18 1994, to grant an injunction to restrain a breach of planning
control by Graham Bird and David Floyd on land at Long Beck Farm, High Leven,
Stokesley, North Yorkshire, by the discontinuance of the use of the said land
for the stationing of residential caravans and the residential use of the land.
The respondents, Graham Bird and David Floyd, are two of the joint freeholders
of Long Beck Farm. They were described by the learned judge as being of gipsy
stock. However, they purchased the land specifically with a view to residence
and settling down. The defendants have lived there with their families in a
total of four residential caravans since early 1987. Mr and Mrs Bird and their
children occupy two of the caravans. Mr and Mrs Floyd (who is Mr Bird’s sister)
occupy a third and Mrs Bird’s parents and Mr Roy and his family a fourth. There
has been, the judge found, a total of seven adults and 10 children on site
although as the children grow up they leave. There is some agricultural
activity and some vehicle breaking on site. Mr Bird, the judge found, is in a
settled situation and his children have attended local schools.
In the summer
of 1987 the council issued and served an enforcement notice under the planning
legislation requiring the respondents to cease use of the land for the siting
of residential caravans. The date by which compliance with that notice was
required was October 27 1987. No action for breach of the enforcement notice
was taken until 1991, the judge found, because it was only in 1991 that an
official site for gipsy caravans, known as the Seamer site, was provided
pursuant to the duty in section 6 of the Caravans Sites Act 1968 to provide
adequate accommodation for gipsies
In April 1991
the council resolved to prosecute the respondents for breach of the enforcement
notice. The Seamer site, which is near Stokesley, had been opened in January
1991. Informations were laid before the magistrates court and summonses were
heard on January 6 1992. Each of the respondents pleaded guilty and was fined
£200. In the meantime, in June 1991, the respondents applied for planning
permission to retain caravans on the land. That application was refused by the
council in August 1991. An appeal to the Secretary of State against that
refusal was dismissed on April 2 1992. In his decision letter the inspector considered
the environmental impact of the application. He stated at para 9:
Taking
account of all these factors I conclude on the first issue that the proposal
would have a damaging effect on the character and appearance of the countryside
and this is an interest of acknowledged importance. Furthermore, approval of
permanent mobile homes here would make it more difficult for the Council to
resist similar applications. In this sensitive location on the fringes of the
Cleveland Hills any such cumulative effect would be extremely damaging.
At para 13 the
inspector stated:
In view of my
finding on the first issue I must decide whether there is a special need for
the retention of these mobile homes that outweighs their harmful effects on the
character and appearance of the countryside.
The inspector
then stated that he had carefully considered the advice contained in Circulars
28/77 and 57/78 relating to the provisions of gipsy sites and particularly in
terms of the duty under section 6 of the 1968 Act and references to the
encouragement of development of private sites by gipsy families.
In the
appendix to Circular 57/78 it is stated at para 4.13 (d) that the Secretaries
of State:
… appreciate that sites suitable in other respects may
conflict with Green Belt or other planning policies. But the special need to
accommodate gypsies — and the consequences of not accommodating them — should
be taken into account as a material consideration in reaching planning
decisions.
At para 17 the
inspector stated:
In this
context I note that the Inspector who dismissed an appeal in 1988 on the
adjoining Carolina Farm site for 30 residential gypsy caravans did not consider
that the special needs for gypsies outweighed the strong planning and highway
objections to that scheme.
Para 18:
In this case
I have carefully weighed the special need against the planning disadvantages I
identified earlier and I consider that, on balance there is
account all other matters raised in the representations and at the inquiry.
None of these matters is of sufficient weight to alter my conclusions on the
main issue.
In May 1992
the respondents applied for planning permission to erect a dwellinghouse for an
agricultural worker on the site. That application was refused and in June 1993
an appeal against the refusal was dismissed. In August 1992 a further
information was laid by the council before magistrates in relation to the
enforcement notice. In September 1992 the respondents pleaded guilty and were
each given an absolute discharge. The council thereupon resolved to seek an
injunction under section 187B of the Town and Country Planning Act 1990 (‘the
1990 Act’) and in April 1993 resolved to reaffirm that resolution after
discussions with the respondents. Section 187B provides in so far as material:
(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.
The trial in
the county court, at which neither counsel now representing the parties
appeared, proceeded on the basis that, notwithstanding the settled situation to
which the learned judge referred, the respondents were gypsies and the
department of environment circulars dealing with gypsies and planning applied
to them. The council did not argue to the contrary and the ground of appeal
which sought to challenge that approach was not pursued by Mr Robin Barrett QC
before this court, realistically in view of the failure to take the point
below. In his judgment the judge referred to Circulars 28/77 and 57/78 and to a
draft circular issued for the purposes of consultation on May 26 1993.
Following consultation Circular 1/94, substantially different from the draft,
was issued on January 5 1994. Although it does not, in my view, affect the
outcome of this appeal, and neither is it likely to have influenced the judge’s
decision, it is unfortunate that the judge who plainly relied on the contents
of the circulars in reaching his conclusion was not referred to Circular 1/94
or to the fact that the provision in the appendix to Circular 57/78, which I
have already quoted, was cancelled by the later circular.
The question
of alternative accommodation for the respondents was raised at the trial. The
learned judge accepted the evidence of Mr Bird that as far as he and his family
are concerned Seamer is a nonstarter as a residential site. Mr Bird did not get
on with the people there. At the earlier planning inquiry, when pitches had
been available at Seamer, objection was taken by Mr Bird, the judge found, on
the basis of lack of compatibility. I read the judge’s finding that the
respondents cannot go to
though at the date of the trial no pitches were in fact available at Seamer.
The learned judge expressed his findings in this way:
So, in
summary, what has been the position? Well, they have been there since 1987.
There has been the family group and the children there, and what is going to be
the position if they are forced to move? Well, they say, and indeed I don’t
think it is seriously disputed — in any event, even if it is, I accept their
account that really there are no alternative sites. They cannot go to Seamer.
There are no other private more acceptable spots where they can go. They chose,
as they say, the site of the sewage works to avoid bothering anybody, and the
net result will be, if they are forced off the site, they will either have to
camp illegally, or, more probably, they will have to be housed by the local
community at a considerable further expense at a time when the local community
is already under a very considerable burden of providing housing for those who
have not got anything, let alone residential caravans. The local authority
would be obliged to house them at public expense and it would be no mean task
in view of what I have set out in relation to the family group.
The learned
judge also referred to the fact that a further planning application for the
disputed use was contemplated by the respondents. This court has been told that
application was in fact made on March 13 1995, that is about two weeks ago and
over a year after the judgment in the county court. The application has not yet
been determined. Having referred to the circulars and to what he regarded as a
changed attitude in them — to gypsies applying for planning permission on their
own private sites — the learned judge expressed the view that the respondents
appeared to have an arguable case for planning permission and that the proposed
application was a highly relevant consideration to the present matters. Later
in his judgment the judge repeated his reference to the public interest:
… it seems to
me that if one views the public interest in the general way of weighing the
considerations that affect this family, affect the community and affect the
situation of their continuing where they are and the continued future of this
particular case, it seems to me wrong to grant the injunction in the first
place on the material I have been given. In all those circumstances I have come
to the clear view that in relation to this application no injunction should
issue because it seems to me that it would be entirely wrong to issue one in a
situation where gross disruption to no great public benefit would be caused to
this family group in a situation where it may be and I say ‘may be’ — it is not
for me to judge what eventually is going to happen — it may be that in the new
climate they have an arguable case to make a further planning application and I
am told that one is contemplated and one may be lodged and is likely to be
lodged pending the result of this particular case.
The learned
judge stated that it was unlikely that ‘any significant enforcement proceedings
by way of injunction would be given teeth’. He concluded his judgment by
saying:
I stress, and
I hope I make it clear, that I am not a court of appeal against a
planning decision and I do not in any way criticise the result of the first
planning appeal. All I do is point to certain features of it, indicate that the
situation has changed and come to the result accordingly. It seems to me that
when one balances all the matters that one can of legitimate public interest
this is a case where the overall public interest at this particular point and
on this material does not justify the issue of an injunction and accordingly
the application for it is refused.
Miss Anne
Williams for the respondents does not dispute the broad powers available to the
court under section 187B of the 1990 Act to grant injunctions to enforce
planning control: Runnymede Borough Council v Harwood [1994] 1
PLR 22. She does not dispute that there has been a consistent flouting by the
respondents of the law requiring compliance with an enforcement notice. She
also accepts that no allegation of breach of statutory duty by the council is a
factor in this case though it can be said in passing that the duty imposed upon
the county council by section 6 of the 1968 Act has now been repealed. Miss
Williams accepts that the judge’s reasoning was not based upon the section 6
duty which existed at the time he gave his judgment. Her submission is that in
his discretion the learned judge was entitled to refuse to grant an injunction
and the judge rightly took into account, it is submitted, the possibility of
change of view by the council as local planning authority towards the
respondents continued residence at the farm. The judge contemplated that a
fresh planning application would be made and, having regard to the new
circular, he was right to take into account the possibility of a fresh
application for the retention of residential caravans on the land being
successful. He was also entitled, it is submitted, to take into account the
respondents’ long period of residence on the site. The court should not
interfere with the judge’s exercise of his discretion.
In Mole
Valley District Council v Smith [1992] 3 PLR 22 gypsies resident on
a site without planning permission appealed against injunctions restraining the
use of the site for stationing of caravans on the principal ground that an
injunction should be refused while the county council remained in breach of the
duty under section 6 of the 1968 Act to provide adequate sites for gypsies
residing in or resorting to their area. While that point does not arise in this
case, the judgments bear upon the question of public interest to which the
judge attached importance and the respective powers and duties of planning
authorities and the courts. Lord Donaldson MR stated at p31C:
No doubt
there are potential disadvantages for the public in moving the appellants off
their existing sites if no other site is available, but where the balance of
the public interest lies is for the respondent councils to determine and not
for this court.
Lord Donaldson
considered the submission that an injunction should be refused on the ground
that the councils were not blameless in the matter. At p32D he stated:
Suffice it to
say that it is not for the courts to usurp the policy decision-making functions
of the Secretary of State as it were by a side-wind.
At p33B
Balcombe LJ stated:
So the main
issue on this appeal is whether Surrey County Council’s failure to perform
their statutory duty should affect the exercise of the court’s discretion to
grant or refuse the injunctions sought. The argument is that no injunction
should be granted, or the operation of any injunction granted should be
suspended, until the county council provide sufficient caravan sites for the
use of gypsies. This is equivalent to saying that the appellants should be
granted temporary planning permission for the use of their land pending the
availability of sufficient authorised sites. That is a policy decision for the
planning authorities …
At p33D
Balcombe LJ continued:
… the court
is being asked to reverse the decisions of the authorities to whom Parliament
has entrusted the relevant decision, not on grounds of illegality, but on
grounds of policy. This is not something which, in my judgment, the court
should do.
The question
had also been considered in Waverley Borough Council v Hilden
[1988] 1 All ER 807, a case cited by the learned judge in his judgment. At
p822D Scott J, as he then was, stated:
I return,
therefore, to the central question. Should I grant injunctions in order to try
and enforce compliance by the defendants with the enforcement notices? In
principle, it seems to me that I should. A breach of the enforcement notices is
a breach of the criminal law and a statement by a citizen that he intends to
break the law and to continue to do so for an indefinite period cannot, in my
view, be tolerated. The defendants are, as it seems to me, making just such a
statement. If it is clear, as I think it is, that the sanctions likely to be
imposed on criminal prosecutions are unlikely to deter the defendants, and if
there is no other means of securing obedience to the law, then in my view a
civil injunction should, in principle, be granted.
I do not
think the defendants’ motive or reason for continuing in breach of the criminal
law, however understandable it may be and whatever sympathy it may justifiably
provoke can justify refusing an injunction. Parliament has laid down a
statutory scheme for regulating the use and development of land. Decisions are
taken in the first instance by the planning authority. There is provision for
appeals to the Secretary of State and, in certain cases, a further appeal to
the High Court. There is provision for the holding of public inquiries so that
all interested points of view can be expressed before a final decision is
taken. But, once the prescribed procedure has been followed and the available
appeals exhausted, the result becomes, for the time being at least, final. The
enforcement notices in the present case have become final. Not only permanent
but also temporary planning permission for the stationing of caravans at
Painshill Copse has been refused. The High Court cannot in an action such as
the present action become, as it were, a further Court of Appeal against a
final Planning decision. The council, the planning authority for the area, is,
in my judgment, entitled to
the enforcement notices to be upheld.
The granting
of an injunction in any particular case is dependent on the court’s discretion.
This does not however entitle a judge in the present context to act as a court
of appeal against a planning decision or to base a refusal to grant an
injunction upon his view of the overall public interest. While disclaiming any
such role it is, in my view, clear from his reasoning that the learned judge
assumed it. The judge referred to the rehousing that would follow an injunction
and he referred to public interest in a general way, weighing the
considerations that affect this family alone and to the lack, as he saw it, of
public benefit which would result from an injunction. To take upon himself the
role of assessing the benefits and disbenefits to the public as a whole was
erroneous. The learned judge was taking upon himself the policy function of the
planning authorities and housing authorities and their powers and duties.
The existence
of the court’s discretion to refuse to enforce an injunction by imprisonment
was confirmed by this court in Guildford Borough Council v Smith
[1994] JPL 734. It does not empower a court to approach an application for an
injunction in the way the judge did. Miss Williams particularly sought to
uphold the exercise of the discretion on the basis of the ‘particular
circumstances’ to which the judge referred. As to the lapse of time and the
possibility of a future planning permission, the lapse of time occurred because
the planning authority in what appears to me to be a lawful and, indeed,
sensible exercise of their powers declined to seek an injunction until, first,
the Seamer site was available, second, the respondents had an opportunity to
seek planning permission and, third, the sanction of proceedings in the
magistrates’ court had been attempted. No expectation can have been created
that the respondents’ breach of the law was tolerated or condoned.
In the
circumstances of this case the possibility of a future grant of planning
permission was not a legitimate reason for refusing an injunction to restrain a
breach of the law. Counsel have addressed the court on the planning policy
documents, those mentioned by the judge and other subsequent documents. It is
for the planning authorities, not the courts, to consider the planning
application recently made and to do so in the light of relevant policy
documents: see Mole Valley v Smith (supra). Miss Williams
has far from persuaded me that an outcome favourable to the respondents was
either at the time of the trial or now such a foregone conclusion that it could
properly influence the court in the exercise of its discretion.
Miss Williams
has referred to article 8 of the European Convention on Human Rights and the
recent majority decision of the commission in Buckley v United
Kingdom (Application 20340/92.) No argument based on article 8 was
addressed to the court below and I do not consider the ruling bears upon the
present facts and the law.
The learned
judge was erroneous in the factors he took into account and his error
undoubtedly influenced his approach to the exercise of his discretion. As in Waverley
Borough Council v Marney (1995) 93 LGR 86, this
an injunction. I have no doubt that an injunction should be granted. The
respondents have demonstrated a plain and consistent intention to remain in
residence at the farm and thereby break the law and continue to do so. That
cannot, in the circumstances of this case, be tolerated. The council were
entitled to go to the court and ask for an injunction requiring compliance with
the enforcement notice.
I would allow
the appeal and grant the injunction sought but suspend its operation for three
months to allow the respondents to make alternative arrangements for their
accommodation.
SIR RALPH
GIBSON: I agree with the order proposed and with
the reasons given by Pill LJ. The course of these proceedings is much to be
regretted. These defendants acquired this site in 1987. Solicitors acted for
them; they are men of intelligence. They knew that they did not have planning
permission to use the site for the purpose of caravan parking. Without
permission they put caravans on the site.
It seems that
they claimed that they believed that while no official site was provided, they
did not need planning permission for their site. It is not said that they were
told that by any official of the council. The history thereafter has been
stated by Pill LJ. By April 1993, after the official site had been in existence
for two years when the present proceedings were commenced, the defendants had
been prosecuted twice and pleaded guilty on each occasion. On the second
occasion, on evidence as to means, etc, of which we know nothing, the magistrates
granted an absolute discharge.
Either on
advice or it may be in defiance of better advice, the defendants by their
solicitors contested the claim of the council to an injunction to stop the
defendants’ breach of planning control on the grounds that they are gypsies and
purchased the land in 1987 ‘to give some stability to their families and have
somewhere permanent to live’. The designated gypsy site at Seamer was full and
the council had ‘accepted that the site was unsuitable for the Defendants’.
Should the injunction be granted, the defendants would be obliged to move off
the land. That would give rise to great injustice because they had ‘at great
expense attempted to obtain planning permission’ which attempts had been made
‘after encouragement from the Council’ and therefore they ask that ‘the
protection of the court be extended to them and they be not required to move
off the land where they live’: see the affidavit of Mr Bird, July 19 1993. That
was supported by an affidavit from Mr Court, a solicitor, who conducted the
case for the defendants before the judge. The purpose was to set out in legal
terms the objections to the case of the council. It was said that no regard had
been had by the council to the advice of central government in relation to the occupation
by gypsies of land owned by them and, by refusing all attempts to legitimise
their occupation, the council had demonstrated an inflexibility of approach.
Reference was
made to Circular 28/77 para 56 and Circular 57/78 and draft Circular 00/93. Changes
of planning policy might thereafter enable the defendants to remain in
occupation of their land. Nothing was said to
the first criminal proceedings in July 1991 or the second criminal proceedings
in August 1992 or commencement of the injunction proceedings in April 1993 had
had any relevant effect upon the conduct of the defendants. Although it was not
stated in his affidavit Mr Bird said in evidence that at the time of service of
the enforcement notice he had got in touch with Mr Smith of the gypsy council
and he was told that if there was no official site he should take no notice. It
was not suggested that the delay had caused him to take a course which
otherwise he would not have taken or caused him not to do something which
otherwise he would have done. His account is that as landowners intending to
use their land for their own purposes they were prevented from doing so.
Pill LJ has
set out the statements of principle in the cases of Mole Valley v Smith
and Waverley Borough Council v Hilden. It is clear to me that
despite his statement at p29 of the judgment that he was not a court of appeal
against a planning decision, the judge did consider the merits of the planning
decision and whether in the light of a ‘changed situation’ a further
application for planning permission which the defendants said they would or
might make would have chances of success. The learned judge was, in effect,
invited to consider the wisdom in terms of policy of the decision of the
council to take proceedings to restrain the breach of planning control by
proceedings under section 187B of the Act, and he did so. He considered the
availability of alternative accommodation for the defendants’ caravans at
Seamer and the evidence of Mr Bird that they could not go to Seamer because
there are families there with whom he did not get on. He considered the ensuing
hardship to the defendants and the fact that their business activities could
not be continued on the site at Seamer. He considered that if the defendants
were forced off their land they must camp illegally or be housed by the local
authority at considerable expense. He decided that ‘the overall public
interest’ did not justify the issue of an injunction.
I agree that
the learned judge misdirected himself and, moreover, reached a conclusion
which, in my judgment, was plainly wrong. The defendants were in no way misled
or unfairly treated by the council. They decided to take a chance on ultimately
obtaining planning permission for land which they bought.
In so far as
their claim turns on their status as gypsies, it was incumbent upon them to
seek planning permission. It is clear on the evidence that space at Seamer
would before long become available. The fact that Mr Bird ‘did not get on with’
unnamed individuals on the Seamer site had, in my judgment, little, if any,
weight.
Further, in
the Mole Valley case at p31B Lord Donaldson MR cited with approval the
passage from a judgment of Hoffmann J:
There can be
no doubt that requiring [the appellants] to leave the site would cause
considerable hardship. This court, however, is not entrusted with a general
jurisdiction to solve social problems. The striking of a balance between the
requirements of planning policy and the needs of these
authorities.
There was, in
my judgment, no defence to the claim for an injunction. The efforts of the
defendants’ advisers should have been directed to securing the best terms which
could properly be granted for the suspension of enforcement of the injunction
so as to enable the breach of planning control to be brought to an end without
excessive hardship to the families of the defendants. As to that I agree with
the order proposed by Pill LJ.
BALCOMBE LJ: I agree that the judgment below cannot be sustained and this
appeal should be allowed. I also agree with the order proposed by Pill LJ, save
that I would add leave to apply to Middlesbrough County Court should that be
necessary.
Appeal
allowed.
