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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 >> Mid Sussex District Council v Boyle  EWCA Civ 8447 (17 May 2002)
Cite as:  EWCA Civ 8447
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE RAFFERTY)
Friday, 17th May 2002
B e f o r e :
LORD JUSTICE LAWS
MR JUSTICE JACKSON
|MID SUSSEX DISTRICT COUNCIL||Claimant/Respondent|
|- v -|
|WILLIAM CHARLES BOYLE||Defendant/Appellant|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
and Messrs Dean Wilson Laing, Brighton (interested party))
appeared on behalf of the Appellant and the Interested Party
MR R TAYLOR (instructed by Legal & Democratic Services, Mid Sussex District Council, West Sussex RH16 1SS)
appeared on behalf of Mid Sussex District Council
Crown Copyright ©
Friday, 17th May 2002
"(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."
"This permission shall enure for the benefit of Mr and Mrs M E Dowsett only and shall not enure for the benefit of the land."
"Mr and Mrs Dowsett appealed against the enforcement notice to the Secretary of State who, again appointed an inspector to enquire and report. It was recommended that, if the Secretary of State were minded to grant permission for the development, it should be 'personal to the appellant and her husband and subject to landscaping and the colour of the mobile home as recommended by the Council'. In due course, the Secretary of State upheld the appeal in a decision letter dated 29th August 1986, and he granted planning permission for the continued stationing of a mobile home for the purpose of human habitation - without any need for compliance with the original Condition 1 of the planning permission dated 20 October 1981 [the time condition]. The letter from the Secretary of State failed to refer to the 'personal' condition but it was indicated in the body of the decision (Paragraph 8) that 'a planning permission should, as recommended by the Inspector, continue to be exercised for the benefit of your client and her husband only.'"
"Although the Secretary of State in paragraph 8 of his letter of 29th August 1986 made it quite clear that the planning permission should continue to be exercised for the benefit of Mr and Mrs Dowsett, this intention is not carried forward in his formal decision in paragraph 9.
You will see that the enforcement notice has been quashed and a permission granted for the continued stationing of a mobile home for the purposes of human habitation without complying with temporary condition No.1 attached to the permission granted under reference FK/15/81. The Council's view is that the Secretary of State, in his formal decision should have expressly made his permission subject to personal occupation by the Dowsetts. He did not do this and consequently the view is taken that the mobile home can be occupied by anyone."
"I next need to consider the effect of the planning permission granted on appeal by the Secretary of State in 1986. As you know, I queried with the Council their interpretation of that permission, and they maintain their view that in view of the terms of S.88 of the 1971 Act there is now an unrestricted planning permission for the stationing of a residential mobile home. In my opinion, however, the deemed application which was before the Secretary of State was under the provisions of Section 32(1)(b) of the 1971 Act [Town & Country Planning Act 1971] to continue the use of the land without complying with the condition which had been breached. (Condition 1), a condition subject to which the previous planning permission was granted. That was the permission actually granted, in exercise of his powers under Section 88B(1)(a). I consider the effect of that permission was to perpetuate the right of Mr and Mrs Dowsett to continue that use by virtue of the Council's permission of 1981, but the personal condition remained in effect."
"The Council issued a further enforcement notice on 11 May 1998, alleging that the permission granted by the Secretary of State on 29 August 1986 had been subject to the condition that 'this permission shall enure for the benefit of Mr and Mrs M E Dowsett and shall not enure for the benefit of the land'. This condition, it was said, had been breached in that the mobile home stationed on the land was being used by somebody else. The notice accordingly required the cessation of the use of the land for stationing a mobile home for human habitation purposes, and also the removal of the mobile home together with all items and materials associated with its residential use.
19. The Defendant appealed to the Secretary of State and an inspector was appointed, who dismissed the appeal and upheld the notice by a letter of 18 June 1999. The period for compliance was varied to 9 months (ie until 18 March 2000)."
"41. In the light of the statutory regime to which I have referred, it is difficult to see what answer there could be to Mr Taylor's submissions. Certainly neither Mr Boyle nor his 'McKenzie friend' made any attempt to address the formidable difficulties presented by s.285. The policy of the legislation is that the matters raised by Mr Boyle should be addressed by the planning inquiry route and its specific appeal provisions - not by the courts. These procedures having been exhausted, therefore, it is not open to the court on an application of this kind to determine such issues differently or even to permit them to be re-opened. In those circumstances, it would appear that I have no choice but to treat Mr Boyle's activities and structures as being in breach of planning control. Since all other attempts to enforce have met with failure, the only step open to the Council is to seek an injunction in accordance with s.187B of the Act. It is clearly settled that the Court's powers in these circumstances extend to the grant of mandatory relief: see eg Croydon London Borough Council v Gladden  1 PLR 30, 35. I will therefore grant an injunction, as the Council asks, although I will hear any submissions over the detailed wording and upon the time when it should be implemented."
"1. The Respondent's decision to take enforcement action constituted a breach of the Appellant's rights to the peaceful enjoyment of his possessions, a right protected by Article 1 of Protocol 1 of the European Convention on Human Rights."
"2. The letter dated 27th December, 1989 constituted a binding determination under Section 53 of the Town & Country Planning Act 1971 and that subsequent enforcement action was unlawful (an estoppel argument in all but name)."
"The Respondent had failed to take enforcement proceedings to secure compliance with the personal occupancy condition within time and that the condition was no longer enforceable."
"38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical.
41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gypsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gypsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive relief). Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate."
"At all material times until notice was received on 25th June 2001 I was unaware of any legal proceedings, my only interest being the horses health and needs. One horse has special dietary requirements and the other is a showing stallion.
3. Due to the huge improvements in my Asthmatic son's health, and our love of the area I made an arrangement with Mr Boyle to stay and manage the land known as Small Acres."
"Small Acres is now a settled and secure home for myself and my son.
10. My interest is in the health and wellbeing of my son, the horses and the land on which we reside. I continue to nurture Small Acres land and respect it as a place of natural beauty."
"I ask for leave to become party to the proceedings as a co-defendant."
"Should this appeal fail and my planning application fail, I shall regrettably be at the mercy of the Council. Duty it upon the Council to relocate me and my mobile home, to a suitable site. As I do not have anywhere else to place my mobile home or in fact the finances or ability to move the mobile home. The resale value of my mobile home in negligible. I could not sell it to raise nearly enough funds to secure alternative accommodation."