Agricultural land – Planning control – Enforcement – Claimant local authority obtaining injunction restraining use of land for residential purposes – Defendants moving caravans onto land – Defendants remaining on land despite injunction Whether defendants entitled to variation or discharge of injunction – Application dismissed
The claimant local authority obtained an injunction, under section 187B of the Town and Country Planning Act 1990, forbidding persons unknown from using certain land for the siting of residential mobile homes and caravans and/or using it for residential purposes. Three copies of the court order were displayed on the site. However, the defendants moved caravans onto the land and used them as their homes.
The defendants were informed that they had to vacate the site because they were in breach of the order. They refused to leave and the claimants commenced committal proceedings, by which time additional structures had been erected.
The defendants contended that they had purchased the land on the understanding that they had a licence to live there; in fact, the vendor had had a one year permission to live there that was personal to her. They were fined £5,000 each. In the meantime, they had applied for retrospective planning permission for residential use and to vary or discharge the terms of the injunction.
The court had to consider four issues, namely: (i) the effect of the defendants’ conduct in breaching the planning controls and the court order and the effect of the decisions in Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] 1 WLR 1460, South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429; [2006] 1 WLR 658 and Wychavon District Council v Rafferty [2006] EWCA Civ 628; [2006] 18 EG 150 (CS); (ii) the availability of alternative accommodation; (iii) the prospects of success of the defendants’ planning application; and (iv) the personal circumstances of the defendants with particular regard to Article 8 of the European Convention on Human Rights.
Held: The application was dismissed.
(1) The defendants had knowlingly disregard of the planning restrictions and breached the court order. That was the most important factor in exercising the court’s discretion in the light of the observations in Mid Bedfordshire that there was a real risk that suspending the injunction would be perceived as condoning the breach and suggesting that the court would tolerate contempt of its orders and permit those who broke them to profit thereby.
(2) Issues of alternative accommodation did not militate against removing the defendants. The claimants had identified several other sites. On the evidence, although none of those sites were necessarily suitable, because of issues of, inter alia, affordability, the claimants had been entitled to conclude that further gypsy and traveller sites were not required. The claimants had worked within their existing policies and it was unnecessary to grant permanent or temporary planning permission for additional sites.
(3) The applicants had no realistic prospect of obtaining planning permission. The local authority and a planning inspector would argue that the land was designated for agricultural purposes and was in an area where the provision of gypsy and travellers sites was adequate, obviating the there need for a change of use. The land was also in a flood risk area and a question of the effect on the landscape also was in issue because of the amount of hardstanding already laid down and proposed in the planning application.
(4) Where a dwelling had been established without planning permission, a conflict arose between the right of the individual under Article 8 to respect for his or her home and the right of the community to environmental protection as set out in planning controls. If the establishment of a home was unlawful, the position of the individual objecting to an order to vacate was less strong. The court would be slow to grant protection to those who, in defiance of the law, established a home on a protected site. To do otherwise would be to encourage illegal action to the detriment of the environmental rights of the community. The evaluation of alternative accommodation, balancing the needs of the person concerned and those of the community, was a task to which a wide margin of appreciation was given. Although some personal circumstances were of help to the defendants, those invoked in the instant case were towards the lower end of the scale.
The application to vary or discharge the injunction would be refused and the injunction would stand.
Saira Sheikh (instructed by Sharpe Pritchard) appeared for the claimants; Marc Willers (instructed by Bramwell Browne Odedra, of Chesham) appeared for the defendants.
Eileen O’Grady, barrister
