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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 Somerset District Council v Hughes & Ors  EWCA Civ 1245 (15 July 2009)
Cite as:  EWCA Civ 1245
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRISTOL DISTRICT REGISTRY
(HIS HONOUR JUDGE RUTHERFORD)
Strand, London, WC2A 2LL
B e f o r e :
(THE MASTER OF THE ROLLS)
LORD JUSTICE DYSON
LORD JUSTICE GOLDRING
| SOUTH SOMERSET DISTRICT COUNCIL
|- and -
HUGHES & ORS
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A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr J Burns (instructed by South Somerset District Council) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Dyson:
"[The claimant's] position is simple. The defendants have exhausted every avenue to enable them to occupy the land legitimately. They have stayed there in breach of the planning law for a number of years."
The relevant law
"(1) Where a local planning authority consider it 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 subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
"38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B 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. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.
39 Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.
40 Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
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 gipsies 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 gipsies 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. The approach in the Hambleton case  3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gipsy's private life and home and the retention of his ethnic identity - are at stake.
42 I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."
"It is the contention of the defendants that the local authority has a duty to follow government guidance and in particular DoE circulars 1/94 and 1/06. The defendant contend that it has failed so to do. The Council vehemently denies this and points out that the circulars are guidance, impose no legal duty, and in any event within its resources it does seek to follow such guidance.
I do not think that it is necessary to determine this dispute, the important point is that everyone acknowledges that there are at present insufficient pitches or sites available in South Somerset. Indeed 1/06 recognises the need for an additional 30 or so pitches and the council hopes to meet this need by 2011."
"33. The position that I face is wholly different. Here over a period of 10 years planning applications and appeals have all failed for the three reasons I have already given. 4 different planning inspectors have reached the same conclusions. Nothing has changed. The visual impact and the unsustainability of the site remain exactly the same. The only evidence of flooding before me is the same, namely that this land falls within the Zone 3 flood plain.
34. I note that the most recent planning appeal considered the possibility of temporary permission and rejected this -- see paragraphs 58 and 59 of the inspector's decision at page 95 of the trial bundle. It is important to note that in reaching this decision the inspector had very much in mind the lack of available alternative sites and the expectation that new sites might become available.
35. I cannot see any reason to think that yet another planning application would meet with greater success than those submitted over the past 10 years. On the evidence before me I consider that such an application would have no, let alone any real prospect, of success even on temporary permission."
"38. One has only to read the most recent planning inspector's decision (at pages 79-96) to see how carefully he considered all relevant matters and that he had very much in mind the article 8 issues and the difficulties and problems which the defendants face if forced to leave the land. These issues are very much in my mind also.
39. I also have in mind the position of the children of this extended family who are settled in Tintinhull School and have an excellent attendance record and recognise the possible disruption which may be caused by an injunction and the other matters set out in the witness statement of Debbie Harvey at page 665.
40. I am also mindful of the fact that I should not grant an injunction unless I would be prepared to enforce it, if necessary by committal. I hope that it will not come to this but I would be prepared so to do if it became necessary save in the case of the 3rd Defendant who is a vulnerable person who would probably not appreciate the meaning of or the significance of any injunction, and the 4th defendant who is a minor. This is probably academic but I am not prepared to make an injunction against either of these defendants.
41. I am also mindful of the fact that an injunction may mean, at least in the short term, that the defendants' legitimate wish to reside in the open and to carry on their traditional way of life is affected. Bricks and mortar accommodation is not ideal but if this is all that the local authority can offer at this point in time then it will have discharged its duty under the Housing Act 1996 and will not have violated article 8. See Leanne Codona v Mid-Bedfordshire District Council  EWCA Civ 925.
42. I take therefore these and all the other considerations I have dealt with in this judgment into account. I have come to the clear conclusion that, after 10 years of unsuccessful planning applications and appeals, the balance does come down in favour of the local authority. It is now entitled to seek the assistance of the court to enforce the planning law and I shall grant an injunction."
The grounds of appeal
"…those considerations in the material paragraphs which are not statutory are considerations of common humanity none of which can properly be ignored when dealing with one of them as fundamental human needs the need for shelter with at least a modicum of security."
"Thirdly, in my judgment, in certain appropriate circumstances it can amount to a breach of Articles 8 and 14 to weigh in the balance and hold against a Gypsy applying for planning permission, or indeed resisting eviction from Council or private land, that he or she has refused conventional housing accommodation as being contrary to his or her culture."
""The decision of the European Court gives valuable guidance as to balancing exercise:
(a) when considering whether a requirement that the individual need his or her home is proportionate to the legitimate aim pursued it is highly relevant whether or not the home was established unlawfully;
(b) If no suitable accommodation is available the interference is more serious. The more suitable the accommodation is the less serious, is the interference."
"58. A limited period planning permission may be justified when it is expected that the planning circumstances will change at the end of the temporary period. Where there is unmet need but no available alternative sites in an area, and a reasonable expectation that new sites are likely to become available at the end of that period, consideration should be given to granting temporary permission.
59. However, I consider that the harm which the appeal proposal causes to the area, to the occupiers of the site themselves and to the emergency services is such that the uses are unacceptable, even on a temporary basis. The harm could not be adequately mitigated by conditions."
"The parties shall exchange witness statements no later than 5.00 p.m. on Friday 13th June 2008….The purpose of the evidence including expert evidence shall be to enable the judge to take a broad view of the planning and caravan-site provision background, the planning prospects, the extent and nature of flood risk and the Defendants' needs, personal circumstances, human rights and potential hardship. No evidence shall seek to establish that the enforcement notices are invalid. The evidence shall not include a flood risk assessment in form or in substance."
No evidence of flood risk assessment was indeed adduced by either party. Nevertheless, as we have seen, the judge said at paragraph 33:
"The only evidence of flooding before me is the same, namely that this land falls within the Zone 3 flood plain."
"In conclusion, I consider that the site is correctly identified as being within the Zone 3 Flood Plain. At times of flood, which the evidence suggests occurs not infrequently, it is clear to me that access to the site would be difficult and/or dangerous along the road, whether on foot or in a vehicle, especially as ditches and hollows would be difficult to identify. Not only would there be danger to occupiers of the site and their property, but emergency services would be placed at unnecessary risk. I conclude that the development would be a significant risk from flooding and, if some of the mitigation measures were employed, it would increase flood risk elsewhere. The proposal would conflict with LP policy EU5."
Lord Justice Goldring:
Sir Anthony Clarke, MR:
Order: Applications refused; appeal dismissed; stay of execution lifted