South Cambridgeshire District Council v Price and others

Gypsy site – Green belt – Enforcement notice – Defendants occupying site in breach of planning control – Claimant council seeking final injunction to evict gypsies – Defendants appealing against refusal of planning permission and granting of injunction– Application dismissedThe defendants were Romany gypsies within the remaining of the Housing (Assessment of Accommodation Needs)(Meaning of Gypsies and Travellers)(England) Regulations 2007 and also within the definition contained in ODPM Circular 1/2006. Since December 2003, they had occupied around 10 pitches on a green-belt site that was subject to controls against development. Soon after their arrival, the claimant council obtained an injunction (which was subsequently stayed) and served an enforcement notice that required the defendants to vacate the site. That was followed by a public inquiry and the secretary of state’s decision to uphold the notice and allow the defendants until November 2005 to leave the site. Thereafter, their presence would constitute a criminal offence.The defendants argued that they had been unable to find an alternative site upon which they could live lawfully and that the claimants had also been unable to identify an appropriate site. The defendants’ application for planning permission to use the land as a caravan site was refused and the claimants applied for a final injunction, under section 187B of the Town and Country Planning Act 1990, to evict them from the site. The defendants resisted the application contending, inter alia, that they had a real chance of success in an appeal against the dismissal of their planning application and should not be forced to leave the site while the appeal was pending. That objective could be met either by refusing to grant the injunction or by adjourning the application pending the outcome of the appeal. They further argued that the claimants’ decision to seek a final injunction was unlawful since they had failed to comply with the race equality duty imposed by section 71 of the Race Relations Act 1976, bearing in mind that the claimants had so far failed to exercise their power to provide a site for gypsies pursuant to section 24 of the Caravan Sites and Control of Development Act 1960.Held: The application was dismissed.An injunction should be granted under section 187B of the 1990 Act only where it was plainly appropriate. Although it was not for the court to question the correctness of the existing planning status of the land in deciding whether to grant an injunction and, if so, whether and for how long to suspend it, the court was bound to come to a broad view as to the degree of environmental damage that resulted from the breach and the urgency or otherwise of bringing it to an end.It would not be appropriate for a court to hold that planning permission should not have been refused but it was not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Further, the court did not have to refuse to consider the possibility that a pending or prospective application for planning permission might succeed, since material might suggest that a previously unsuccessful party might yet succeed. It would be disproportionate to grant an injunction while there was a possibility that an appeal against an enforcement notice or a fresh application by the defendants for the requisite planning permission might succeed. Such a prospect arose in respect of the application for temporary planning permission, which was to be the subject of an inquiry; an injunction would be disproportionate at this stage because it would require the defendants to vacate the site in the absence of any alternative provision.However, the application for a final injunction was not in itself contrary to the duty imposed by section 71 of the 1976 Act to have due regard to the requirement to eliminate unlawful racial discrimination or to promote equality of opportunity: R (on the application of Baker) v Secretary of State for Communities and Local Government [2008] EWCA 141; [2008] 2 P&CR 6 and R (on the application of McCarthy) v Basildon District Council [2008] EWHC 987 (Admin); [2008] 19 EG 205 (CS) considered. Richard Langham (instructed by the legal department of South Cambridgeshire District Council) appeared for the claimants; Marc Willers (instructed by Community Law Partnership, of Birmingham) appeared for the eighth and tenth defendants; the second and fourth defendants appeared in person; the other defendants did not appear and were not represented.Eileen O’Grady, barrister