Enforcement control – Injunctive relief – Section 187B of Town and Country Planning Act 1990 – Respondents serving injunction on appellant and other defendants in respect of breaches of planning control – Whether judge failing to take account of personal circumstances and hardship resulting from compliance with injunction – Whether judge erring in granting injunction in respect of land not owned or controlled by appellant Between 1997 and 2007, the respondent local planning authorities had served five enforcement notices on the appellant and other defendants in respect of long-standing and significant breaches of planning control in the form of the deposit of vehicles, machinery, rubbish and such like on the land. There had been little or no effective response to those notices. So far as the appellant was concerned, the proceedings were in respect of a farm and associated fields and a wood (originally part of the farm but now separate). The appellant was the legal owner of the freehold of the farm and held a joint tenancy under a lease granted to her and the third defendant when the wood still formed part of the farm. The appellant had transferred half her share in the joint tenancy to the second defendant, her former husband, as tenants in common. She had sold the wood with an option to purchase the land. In 2007, the respondents obtained an injunction under section187B of the Town and Country Planning Act 1990 against the appellant and the other defendants. The appellant had not lived on, used or derive rent from, or paid rent on, either the farm or the wood at any relevant time. It was not alleged that she was personally responsible for bringing the offending material onto the land. The third defendant was a farmer and managed the farm land and its associated fields. The fourth defendant was also an informal tenant of about one hectare. The judge heard evidence that both those defendants had brought offending material onto the land. However, he did not accept that the appellant was handicapped in dealing with the farm as she was unable to go near the second defendant because of his past violence. Therefore, the judge granted the injunction which required the appellant and the other defendants to remove the offending items. The appellant appealed, contending that: (i) the order constituted a disproportionate interference with her rights under article8 of the European Convention on Human Rights and failed properly to take into account her personal circumstances and the hardship she would suffer if she attempted to comply; and (ii) no order should have been made against her in respect of the wood as she had no interest in it other than an option to purchase the freehold. Held: The appeal was allowed in part. (1) All the points raised by the appellant on appeal had been fully considered by the judge. The judge had not made a finding that she was not in fear of her husband but that, in the circumstances, which included the support of her adult children to whom she was close, the fact that he lived outside the country for all but a small part of the year, and the fact that she was not without resources, principally the property itself, her genuine fear was no justification for her almost complete inactivity over this matter for many years. The court could not accept that those findings even approached the point where it could be said they were wrong in law or not open to the judge on the evidence he had heard: South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101 applied. (2) However, whereas the appellant remained the legal owner of the farm, which was the understandable basis on which the judge had found there was more she could have done to rectify the breaches committed by the other defendants, in relation to the wood, she had at best an exiguous or vestigial relationship traceable through her lease of the land after selling the freehold of the wood. The judge had not asked how she could, as an absentee tenant, have realistically exercised any control over activities on that land, carried out by the second defendant and/or the third and fourth defendants, owner and lessees/licences respectively, and so compel them to rectify the breaches. If the judge had addressed that issue, it was possible he would have reached a different conclusion from that which he reached in relation to the farm proper. By contrast the respondents had the benefit of that part of the order as against the other defendants, the obvious targets for such a remedy on every score. That was appropriate relief and the judge had been wrong to extend the order relating to the wood to the appellant. Kevin Leigh (instructed by Gotelee, of Ipswich and Suffolk LegalServices Department) appeared for the claimants; Andrew Deakin (instructed by Birketts LLP, of Ipswich) appeared for the defendants. Eileen O’Grady, barrister
St Edmundsbury Borough Council and another v Reynolds and others
Enforcement control – Injunctive relief – Section 187B of Town and Country Planning Act 1990 – Respondents serving injunction on appellant and other defendants in respect of breaches of planning control – Whether judge failing to take account of personal circumstances and hardship resulting from compliance with injunction – Whether judge erring in granting injunction in respect of land not owned or controlled by appellant Between 1997 and 2007, the respondent local planning authorities had served five enforcement notices on the appellant and other defendants in respect of long-standing and significant breaches of planning control in the form of the deposit of vehicles, machinery, rubbish and such like on the land. There had been little or no effective response to those notices. So far as the appellant was concerned, the proceedings were in respect of a farm and associated fields and a wood (originally part of the farm but now separate). The appellant was the legal owner of the freehold of the farm and held a joint tenancy under a lease granted to her and the third defendant when the wood still formed part of the farm. The appellant had transferred half her share in the joint tenancy to the second defendant, her former husband, as tenants in common. She had sold the wood with an option to purchase the land. In 2007, the respondents obtained an injunction under section187B of the Town and Country Planning Act 1990 against the appellant and the other defendants. The appellant had not lived on, used or derive rent from, or paid rent on, either the farm or the wood at any relevant time. It was not alleged that she was personally responsible for bringing the offending material onto the land. The third defendant was a farmer and managed the farm land and its associated fields. The fourth defendant was also an informal tenant of about one hectare. The judge heard evidence that both those defendants had brought offending material onto the land. However, he did not accept that the appellant was handicapped in dealing with the farm as she was unable to go near the second defendant because of his past violence. Therefore, the judge granted the injunction which required the appellant and the other defendants to remove the offending items. The appellant appealed, contending that: (i) the order constituted a disproportionate interference with her rights under article8 of the European Convention on Human Rights and failed properly to take into account her personal circumstances and the hardship she would suffer if she attempted to comply; and (ii) no order should have been made against her in respect of the wood as she had no interest in it other than an option to purchase the freehold. Held: The appeal was allowed in part. (1) All the points raised by the appellant on appeal had been fully considered by the judge. The judge had not made a finding that she was not in fear of her husband but that, in the circumstances, which included the support of her adult children to whom she was close, the fact that he lived outside the country for all but a small part of the year, and the fact that she was not without resources, principally the property itself, her genuine fear was no justification for her almost complete inactivity over this matter for many years. The court could not accept that those findings even approached the point where it could be said they were wrong in law or not open to the judge on the evidence he had heard: South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101 applied. (2) However, whereas the appellant remained the legal owner of the farm, which was the understandable basis on which the judge had found there was more she could have done to rectify the breaches committed by the other defendants, in relation to the wood, she had at best an exiguous or vestigial relationship traceable through her lease of the land after selling the freehold of the wood. The judge had not asked how she could, as an absentee tenant, have realistically exercised any control over activities on that land, carried out by the second defendant and/or the third and fourth defendants, owner and lessees/licences respectively, and so compel them to rectify the breaches. If the judge had addressed that issue, it was possible he would have reached a different conclusion from that which he reached in relation to the farm proper. By contrast the respondents had the benefit of that part of the order as against the other defendants, the obvious targets for such a remedy on every score. That was appropriate relief and the judge had been wrong to extend the order relating to the wood to the appellant. Kevin Leigh (instructed by Gotelee, of Ipswich and Suffolk LegalServices Department) appeared for the claimants; Andrew Deakin (instructed by Birketts LLP, of Ipswich) appeared for the defendants. Eileen O’Grady, barrister
