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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> South Bucks District Council v Porter  EWCA Civ 1549 (12 October 2001)
Cite as:  1 All ER 425,  2 P & CR 16,  BLGR 443,  1 WLR 1359,  EWCA Civ 1549,  WLR 1359,  JPL 608
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COURT OF APPEAL (CIVIL DIVISION)
(1) ON APPEAL FROM THE QUEEN'S BENCH
Mr Justice Burton
(2) ON APPEAL FROM CHICHESTER COUNTY COURT
H.H. Judge Barratt QC
ON APPEAL FROM THE QUEEN'S BENCH
(3) Mr Justice McCombe
(4) H.H. Judge Brunning (sitting as a High Court Judge)
London, WC2A 2LL
Friday 12 October 2001
B e f o r e :
LORD JUSTICE PETER GIBSON
LORD JUSTICE TUCKEY
| (1) SOUTH BUCKS DISTRICT COUNCIL
(2) CHICHESTER DISTRICT COUNCIL
SEARLE AND OTHERS
(3) WREXHAM COUNTY BOROUGH COUNCIL
(4) HERTSMERE BOROUGH COUNCIL
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Charles George QC & Mr Stephen Cottle (instructed by Mr Christopher Johnson of the Community Law Partnership of Birmingham B4 6RP) for the Appellant
(2) Mr Timothy Straker QC & Mr Robin Green (instructed by Sharpe Pritchard of London WC1V 6HG) for the Respondent
Mr David Watkinson (instructed by Mr Christopher Johnson of the Community Law Partnership of Birmingham B4 6RP) for the Appellants
(3) Mr Timothy Straker QC & Mr Robin Green (instructed by Sharpe Pritchard of London WC1V 6HG) for the Respondent
Mr Richard Drabble QC & Mr Stephen Cottle (instructed by Mr Christopher Johnson of the Community Law Partnership of Birmingham B4 6RP) for the Appellant
(4) Mr Robert McCracken & Mr Gregory Jones (instructed by Beryl Foster, Head of Legal Services, Hertsmere BC) for the Respondent
Mr Richard Drabble QC & Mr Murray Hunt (instructed by Lance Kent & Co. of Chesham HP5 1EG) for the Appellant
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
"(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 sub-section (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
Porter v South Bucks District Council
Searle v Chichester District Council
Berry v Wrexham County Borough Council
Harty v Hertsmere Borough Council
"There can be no doubt that requiring [the defendants] 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 defendants is a matter which, in my view, has been entrusted to other authorities."
"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."
"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."
"The argument is that no injunction should be granted, or the operation of any injunction granted should be suspended, until the county council provides sufficient caravan sites for the use of gipsies. 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 and … even temporary planning permission was considered and rejected by the Secretary of State. Thus, 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."
"There were three possible solutions which the law might provide in such a case. The first would be to refuse any injunction; the second to grant an injunction but impose no penalty if it is broken; and the third to grant an injunction and if it were broken to impose a penalty of imprisonment, perhaps suspended for a time.
As to the first solution to refuse an injunction altogether it was his view that the court should not make orders which it did not contemplate enforcing. In the rules of nursery and discipline, 'No' means 'No' and was usually followed by sanctions if disobeyed. Those who make orders but do not enforce them may tend to be regarded with contempt, not an inappropriate word in this context. But the case of Mole Valley D.C. v Smith (1992) 24 H.L.R. 442, (1992) 64 P. & C.R.491, shows that it would have been wrong to take that course. It was not for the courts to refuse an injunction because there were no other sites available. We were bound by that decision. Furthermore, there had been no application to discharge the injunction, and no appeal against the order granting it.
The second possible solution was to grant an injunction but impose no penalty if it was broken. That was a poor substitute. The order had been broken. It would remain in force and would presumably continue to be broken, and no sanctions will be imposed unless circumstances change. There was a position which the law ought to avoid if it could.
The third solution was that the court was required to grant an injunction and required to enforce it by imprisonment without regard to the personal circumstances of the defendants (whoever they may be) or to any other circumstances of the case. That, it seems is even worse than the second solution."
The court adopted the second solution.
"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  JPL 734. It does not empower a court to approach an application for an injunction in the way the judge did."
"[The] submission is that the court can, and should, even though upholding the lawfulness and the validity of the council's decisions, nevertheless reintroduce and reconsider questions of hardship at the injunction stage. This submission is, in my view, entirely foreclosed by two Court of Appeal authorities which are binding upon me. [These were Mole Valley District Council v Smith and Hambleton District Council v Bird, from both of which the judge then cited yet more extensively than I have done]. [I]t is quite clear both from the Guildford case and from the way Hambleton deals with it that the decision on whether to enforce the injunction by imprisonment is an entirely separate question from whether to grant an injunction to start with. … The effect thus appears to be that s.187B certainly allows for a challenge to the decision made by the claimant, including the decision to seek an injunction, and it may be that evidence of hardship falling for consideration on such an application to the court will be so strong that it could support a case … that the decision by the council is Wednesbury unreasonable, as indeed is the primary submission in this case … . It is plain that questions of hardship, questions of policy, questions of alternative accommodation, are all matters which are previously considered by the council, at least if they are not acting Wednesbury unreasonably, and do not fall for reconsideration by the court."
"1. The starting point must be the existence and the nature of the breach or breaches to be restrained. It is not for this court to reassess or act as a court of appeal from the decisions that have already been made on the part of the authorities through the relevant planning procedures in determining whether or not planning permission should be granted or the enforcement notices confirmed: see Hambleton District Council v Bird (supra), per Pill LJ at p677.
2. The defendants' rights under Article 8 of the Convention are a highly material consideration. Those rights are not, however, unqualified. Again, it seems to me that it is not for this court to act as a reviewing chamber for the decisions that have been made in the planning process as to the appropriate balance to be struck between those private rights and the public necessity: see Buckley v United Kingdom (supra) [(1997) 23 EHRR 101] and R v Beard (supra) [ 1 PCR 64] per Hobhouse LJ (as he then was) at p72.
3. The same approach applies to the consideration of other humanitarian aspects affecting the personal circumstances of the defendants, as referred to by Sedley J (as he then was) in ex parte Atkinson (supra) [ JPL65] and Latham J in ex parte Uzell (supra) [(1995) 71 P & CR566].
4. However, in respect of both the last two considerations, it is for this court carefully to examine any change in circumstances since the matter was previously considered as part of the planning process, not to revisit the decisions then taken but to see what effect any changes may have on the conclusions then reached.
5. Finally, to reach a conclusion whether, in all the circumstances, the grant of an injunction would be just and proportionate."
"There is no inconsistency between the scheme of the United Kingdom planning legislation and the Convention. The legislative scheme allows for the legitimate rights and expectations of gipsies to be taken into account at the appropriate stages of the procedure, including at the stage of deciding whether or not an enforcement notice should be upheld. Once an appropriate decision has been made in accordance with the law to uphold the enforcement notice, its enforcement involves no conflict with article 8. The subject matter of s.179 is failure to comply with a lawful enforcement notice. There is no ambiguity, the resolution of which requires recourse to the Convention … "
i) Burton J, deciding the South Bucks case on 22 January 2000, simply applied his own earlier decision in Aylesbury Vale. Although on this occasion article 8 was touched on, he remarked that it was not yet "enshrined in English law" and that it did not enable him to reconsider the decisions of the Court of Appeal in Mole Valley or Hambleton.
ii) Judge Barratt QC, giving judgment in the Chichester case on 30 June 2000, directed himself substantially in accordance with Hambleton (in which he had acted as counsel for the successful appellant authority). He was not persuaded to a different approach by the ECtHR's judgment in Buckley.
iii) McCombe J, deciding the Wrexham case on 12 February 2001, appears to have regarded the ECtHR's judgment in Chapman as decisive of the application before him.
iv) Judge Brunning's judgment, given on 13 March 2001, gives rise to greater difficulty in determining just what approach he took to the application before him, the form of his judgment appearing to be to some extent dictated by the need to deal with the submissions which the appellants then advanced but which are put somewhat differently before us. Certainly, however, he was provided with a press release issued by the Registrar of the ECtHR of the Court's judgment in Chapman (decided together with four other gipsy cases against the United Kingdom on 18 January 2001) which summarised the decision of the majority of the Court on article 8 as follows:"In all five cases, the Court considered that the applicants' occupation of their caravans was an integral part of their ethnic identity as gipsies and that the enforcement measures and planning decisions in each case interfered with the applicants' rights to respect for their private and family life.However, the Court found that the measures were 'in accordance with the law' and pursued the legitimate aim of protecting the 'rights of others' through preservation of the environment.As regards the necessity of the measures taken in pursuit of that legitimate aim, the Court considered that a wide margin of appreciation had to be accorded to the domestic authorities who were far better placed to reach decisions concerning the planning considerations attaching to a particular site. In these cases, the Court found that the planning inspectors had identified strong environmental objections to the applicants' use of their land which outweighed the applicants' individual interests.The Court also noted that gipsies were at liberty to camp on any caravan site with planning permission. Although there were insufficient sites which gipsies found acceptable and affordable and on which they could lawfully place their caravans, the Court was not persuaded that there were no alternatives available to the applicants besides occupying land without planning permission, in some cases on a Green Belt or Special Landscape area.The Court did not accept that, because statistically the number of gipsies was greater than the number of places available in authorised gipsy sites, decisions not to allow the applicants to occupy land where they wished to install their caravans constituted a violation of article 8. Neither was the Court convinced that article 8 could be interpreted to impose on the United Kingdom, as on all the other contracting states to the European Convention on Human Rights, an obligation to make available to the gipsy community an adequate number of suitably equipped sites. Article 8 did not give a right to be provided with a home, nor did any of the Court's jurisprudence acknowledge such a right. Whether the state provided funds to enable everyone to have a home was a matter for political not judicial decision. Finding: no violation."
"… When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community."
"The judgment in any particular case by the national authorities that there are legitimate planning objections to a particular use of a site is one which the court is not well equipped to challenge. It cannot visit each site to assess the impact of a particular proposal on a particular area in terms of impact on beauty, traffic conditions, sewerage and water facilities, educational facilities, medical facilities, employment opportunities and so on. Because planning inspectors visit the site, hear the arguments on all sides and allow examination of witnesses, they are better situated than the court to weigh the arguments. Hence, as the court observed in Buckley … 'insofar as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation', although it remains open to the court to conclude that there has been a manifest error of appreciation by the national authorities. In these circumstances, the procedural safeguards available to the individual applicant will be especially material in determining whether the respondent state has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, it must examine whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by article 8 (see Buckley …)."
The Appellants' Case
"The decision whether to grant an injunction is always solely a matter for the Court, in its absolute discretion in the circumstances of any case. Nevertheless, it is unlikely that the Court will grant an injunction unless all the following criteria are satisfied: … (3) injunctive relief is a commensurate remedy in the circumstances of the particular case … "
"Now, following the incorporation of the Convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy."
The Respondents' Case
The approach to s.187B
The four appeals
1.Porter v South Bucks District Council
2.Searle v Chichester District Council
3.Berry v Wrexham County Borough Council
"On this issue, I do not think I have to decide the extent to which in any individual case the court may have to investigate planning considerations in deciding whether a proper approach to article 8 has been adopted. For my part, I believe that the case on this issue can adequately be resolved by the decision in Chapman itself, where the facts were not at all dissimilar to those, in my view, in issue here. … It must, of course, be noticed that other relevant considerations have to be taken into account by the national authorities, and those include the availability or otherwise of alternative accommodation. [The appellant] urges upon me that in reality there is no alternative accommodation because of the Berry family's difficulty at the Ruthin Road site. In my view, however, the Chapman case also provides an answer to this point by reference to its own facts, which again are not dissimilar to those which confront me in the present matter."
"The court is therefore not persuaded that there were no alternatives available to the applicant besides remaining in occupation on land without planning permission in a Green Belt area."
"In my view, those statements apply equally to this case. I am not persuaded that there is any material distinction in the factor that in Chapman the planning issues had been considered by a planning inspector. Mr Berry has had ample opportunity to invoke the appeal processes open to him under the law to contest the previous decisions of the planning authority and he has chosen not to take them. Neither has he made any further application for permission since September 2000. He cannot, in my view, now be heard to contend that this court should itself now undertake a planning review which Mr Berry has consciously eschewed on more than one previous occasion and seems disinclined to seek in any proper way even now."
4.Harty v Hertsmere Borough Council
"The whole tenor of the considerations put before the local authority therefore was that there had to be a balance between the various needs of the defendants as applicants for planning permission and the various planning considerations that were set out. … [The judgment then explained that the appellants were represented by an experienced firm of solicitors who had been able to put all the relevant considerations before the Council.] It may well be that there are circumstances which arise where a local authority will not satisfactorily have carried out a balancing exercise by reason of its failure to make factual enquiries. This, however, was not such a case. Accordingly, I am satisfied that this local authority did carry out the process which the law requires it to carry out and has demonstrated in striking the balance it did that it has given full weight to the considerations it is required to give under the Human Rights Act. … I am aware of the needs of the individuals concerned and some of the particularly difficult circumstances that prevail. On the other hand, I am required in the exercise of discretion to strike a balance, and whilst I have those humanitarian matters in mind, I must at the same time look at the wider picture and other interests. I am satisfied that this is an appropriate case for an injunction. It is [the fourth unlawful occupation of this site over a period of some years] … which in its own way is of some significance when coming to consider the exercise of discretion.uHuman "
"2. … Members may recall that they passed a resolution on the 24th October last year for the Council to apply for injunctive relief following the occupation of the site. Instructions have been given and the papers settled but proceedings have not been issued in order that the members have the opportunity to consider all of the arguments now put forward on behalf of the applicants for this development. In the event that the members were to refuse planning permission proceedings would be issued forthwith for interim and full injunctive relief.
6.21 It is legitimate … for Members to balance Green Belt and other land use objectives against the rights in article 8. In the absence of any compelling case of 'very special circumstances', it is clear that the proposal would be inappropriate development which, by definition, is harmful to the Green Belt. The applicant's agent acknowledges the Buckley case. He also argues that the applicant and the other families have no alternative site and that to refuse planning permission in this instance would be a breach of their rights under article 8. He adds that the site is of poor landscape quality and that the applicant is prepared to landscape the site, in collaboration with the local planning authority.
6.22 The need for the protection of the Green Belt is a serious public interest and objections in this respect cannot be overcome by the use of conditions on a planning permission. The public interest can therefore only be protected by the refusal of planning permission. It is considered that the refusal of planning permission is necessary having regard to the important and legitimate aim of protecting the Green Belt. It is considered that such a decision would not place a disproportionate burden on the appellants and would not result in a violation of their rights under article 8 of the Convention."
"Some Members of Committee were minded to support the grant of a temporary permission for one year only. However, the Officers reported that if the sub-committee was minded to reverse the Officers' recommendation and to grant such a permission the application would have to be reported to the environment committee as a departure from the local plan. The sub-committee would also have to be satisfied that very special circumstances existed even if the application to be granted was a temporary one. As stated in their report, the Officers were of the opinion that those very special circumstances did not exist."
"The basic approach at para 6.22 cannot be regarded as a proper exercise that recognises the need to protect the gipsies' particular rights under article 8 unless the environmental harm in the individual case justifies the interference. Its logic is that protection of the Green Belt is 'a serious public interest'; conditions do not avoid conflict; 'the public interest can therefore only be protected by the refusal of planning permission'. This approach could be repeated, in identical words, whether the damage to the Green Belt is great or small and whether the humanitarian considerations, including abandonment of the traditional lifestyle, are great or small."
LORD JUSTICE PETER GIBSON:
LORD JUSTICE TUCKEY: