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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Broadland District Council v Brightwell [2010] EWCA Civ 1516 (28 October 2010) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2010/1516.html Cite as: [2010] EWCA Civ 1516 |
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ON APPEAL FROM QUEENS BENCH DIVISION
MR NIGEL WILKINSON QC
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ETHERTON
and
LORD JUSTICE TOMLINSON
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Broadland District Council |
Respondent |
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- and - |
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Brightwell |
Appellants |
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Mr Harrison QC (instructed by Norfolk County Council) appeared on behalf of the Respondent.
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Crown Copyright ©
Lord Justice Ward:
"(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 subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach."
"…I recognise that the dismissal of Appeal A and Appeal B would result in an interference with the appellant's home and private and family life. However the interference must be balanced against the public interest in pursuing economic well being of the country, which includes the preservation of the environment. I have considered the possibility of a personal condition, offered by the appellant as a means of overcoming objections to the proposal and to enable Human Rights considerations to be decisive. However, in view of my conclusions that there is not an existing functional need and that the enterprise is not financially viable, that type of condition would not be appropriate. Accordingly the serious objections to the proposals cannot be overcome by granting a planning permission subject to conditions. The public interest can only be safeguarded by the refusal of permission."
So the planning inspector correctly had regard to the Article 8 rights of this family.
"Lucy has recently been diagnosed with asthma and as I am sure you are aware, this is a condition which is adversely affected by damp, cold conditions.
Mr Paul Brightwell has been treated at the surgery for stress and depression. He has other medical conditions, which can be indirectly made worse by stress and depression."
And, speaking for myself, and having seen him and heard him and noted his physical distress, I have no doubt that this is, and will continue to be, a stressful time indeed for him.
"Due to the stringent requirements of our in-house quality assurance system and those of the Genesis and Freedom Food Assurance Schemes the pigs are required to be monitored 24 hours a day, seven days a week. We therefore all feel it is essential to have a dwelling at the unit to ensure welfare and security on the unit are not compromised."
"The family achieve great results with their pigs and I am consistently impressed with the health and performance. I believe the provisions of good quality well-stored straw along with good stockmanship is key to their success."
"7. The essence of the dispute between the Brightwells and the Council is their underlying wish (the wish of the Brightwell family) to reside on this land. They wish to do that for their own reasons. They also say the ability to effectively farm the land as a piggery requires there should be farmers living on-site and not off-site. This is an issue which has been examined under the umbrella of the planning legislation by various inspectors over time. The conclusion that has been arrived at is not in favour of the Brightwell argument and is in favour of the Broadland District Council who contend that what in essence is going on here is a family are to establish a residential usage under the umbrella of an argument that seeks to suggest that it is agriculturally justifiable.
8. That position has failed and it is not a matter for me to judge whether or not it should have failed. There is little in dispute on the facts in relation to the planning history. Evidence was given by Mr Howard. Mrs Brightwell declined the invitation to give evidence from the witness box but addressed me on the principal issues that go to the making of the injunction. The fact she did not give evidence in no way detracts from everything she had said. I regard her as a very worthy individual who advances the arguments in favour of her and her husband in a highly persuasive way. She emphasises they are good farmers. There is abundant information in a bundle of documents she has produced to show others who work on the agricultural community in the area find them to be worthwhile farming neighbours. There is little evidence, and indeed quite of volume of evidence the other way, to show they may have been causing forcibly in their favour and I have no reason to think were this matter to be dealt with on the basis of an analysis of local assessment of them that the argument would go against them.
9. Mr and Mrs Brightwell pay their way. They pay their taxes, they do not require the state to make accommodation available to them or fund the cost of such accommodation. When they came onto the site they had with them three children and since arriving at the site, two further children; Lucy and Joe (aged 11 and 9 now) have been born to them. Lucy is apparently not well-suited to the somewhat austere conditions of caravan life on the site and has an asthmatic condition that may be attributable to the dampness and the cold of that type of accommodation. It is apparent that Joe, the youngest, who is shown in a photograph recently taken, may have been suffering from educational problems resulting from the difficulties of their state, not just the circumstances in which they are required to live but the stress of the confrontation that has existed between the family and council for such a long period of time."
"Those are all matters I should take into account and do take into account in balancing the interests of the parties who are concerned in its issue."
He then said that he had to be guided by the decision of the House of Lords in the now well-known case of South Bucks District Council v Porter [2003] UKHL 26 [2003] 2 AC 558. It is necessary to look at that decision closely. Lord Bingham's speech set out the legislative history for Section 187B. He then turned to the Court of Appeal decision where the lead judgment was given by Simon Brown LJ, as he then was; and in paragraph 20 Lord Bingham recited in extenso the five relevant paragraphs of the Court of Appeal judgment. He was later to say towards the end of his speech that the guidance given by the Court of Appeal was, in his opinion, "judicious and accurate in all essential respects and I would endorse it".
"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."
"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."
"…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 [1995] 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 theHuman 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."
"Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint ...that will point strongly towards the grant of an injunction."
But he emphasised also:
"…in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant."
"If Section 187B is interpreted and applied in accordance with the principles adumbrated in the foregoing paragraphs, it is very questionable whether Article 8 of the European Convention has any bearing on the court's approach to an application under the section. But since the European Court of Human Rights has given judgment in two cases involving Gypsies in the United Kingdom, brief reference should be made to those cases. In both it was effectively common ground that enforcement action by the local planning authority to secure the removal of the Gypsy from a site involved in interference by a public authority with the Gypsy's right to respect for her home, that such an interference was in accordance with the law and that the measures pursued aims entitled to recognition under the Convention as legitimate."
"These cases make plain that decisions properly and fairly made by national authorities must command respect. They also make plain that any interference with a person's right to respect for her home, even if in accordance with national law and directed to a legitimate aim, must be proportionate. As a public authority, the English court is prohibited by section 6(1) and (3)(a) of theHuman Rights Act
1998 from acting incompatibly with any Convention right as defined in the Act, including article 8. It follows, in my opinion, that when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is in any event required by domestic law to carry out." [emphasis added]
That concluding sentence is also important in this appeal.
"I consider that the factors stated by Simon Brown LJ properly reflect the considerations which in Chapman the European Court stated should be taken into account and that a court which follows the guidance given by him will be acting compatibly with Article 8."
As I read Lord Scott's opinion, he did not refer to Article 8 at all.
"I am a little confused by paragraph 18 of the judge's decision, and whether he is there recognising that Article 8 has to be taken into account. I think he probably is saying that it does, but it is arguable that he did not give proper consideration to the consequences of the family of having to move."
"17. The only additional matter to which I should refer so far as the legal principles which govern this area of law is concerned is that of the possible application of article 8 of the European Convention on Human Rights. It is, of course, plain from what I have said that in advancing her submissions to the court Mrs Brightwell has not been able to refer to the statutory provisions that govern the application or to the influence of the Human Rights Act which is concerned to protect the personal circumstances of those whose rights to continue to live in a particular place is called into question. At paragraph 34 of Bingham's LJ speech he dealt with the interrelationship between Section 187B and the European Convention on Human Rights of which of course Article 8 is part, he used these words:
'If section 187B is interpreted and applied in accordance with the principles adumbrated in the foregoing paragraphs, it is very questionable whether article 8 of the European Convention has any bearing on the court's approach to an application under the section.'
18. The learned Law Lord went on to consider the European Court of Human Rights and its decisions in that area because the case that was before their Lordships was a gypsy case. This is not a gypsy case and I take it that although the considerations that arise under theHuman Rights Act
and the Convention are present in this case, an approach to the issues arising in this application should be made under 187B. That section is not influenced by article 8 in such a way as to make the principle in South Bucks District Council v Porter inappropriate to guide me."
"and I take it that, although the considerations that arise under theHuman Rights Act and Convention are present in this case, an approach to the issues arising in the application should be made under Section 187B."
"The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case [he did not add 'as did the Lord Justice' but never mind] but also of a reserved judgment based upon notes, such as was given by the District Judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973 and, I would add, of Article 8 of the European Convention on Human Rights].
An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."
"I am influenced considerably by the unchallenged position before me that notwithstanding a decade and more of substantial failure of the Brightwell arguments, when examined by inspectors following enforcement procedure, the position of the Brightwell family is that it is not to be deflected by the decisions of the inspectorates and of the court but will persist in its determined fashion to retain residence and indeed develop residential rights upon this land. Notwithstanding that they have been told time and time again that it is not consistent with planning law. Consequently, the principles underlying the case I have referred to are well made in this case and it is not sought by Mrs Brightwell in her address to the court, to challenge the proposition either that there has been a repeat of the history of breach of the planning legislation or that the current intention is to continue in the present vein and that the determination of the family to live on this site remains as their view."
And for those reasons he granted the injunction.
"10. Over the past 60 years there has been ever-increasing recognition of the need to control the use and development of land so as to prevent inappropriate development and protect the environment. This is, inevitably, a sensitive process, since it constrains the freedom of private owners to use their own land as they wish. But it is a very important process, since control, appropriately and firmly exercised, enures to the benefit of the whole community."
Thus there is a compelling factor to weigh against the equally possibly heartbreaking difficulties that this family face.
Lord Justice Etherton:
Lord Justice Tomlinson:
Order: Appeal dismissed