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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Dyer & Anor v Webb & Ors [2023] EWHC 1917 (KB) (10 July 2023) URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/1917.html Cite as: [2023] EWHC 1917 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Deputy High Court Judge)
____________________
Mark Randolph Dyer (1) Clare Alexandra Pandora Dyer (2) |
Applicants/ Claimants |
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- and – |
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Patricia Webb (1) David Aymer Small (2) Susan Eileen Small (3) Dr Andrew Cross (4) |
Respondents/ Defendants |
____________________
Ms A. Proferes (instructed by Charles Russell Speechlys) for the Respondents/Defendants
Hearing date: 11 May 2023
____________________
Crown Copyright ©
Dexter Dias KC:
Section |
Contents |
Paragraphs |
I. |
Introduction (a) Parties (b) Residences (c) The application (d) Rival cases (e) Core allegations (f) Terms of injunction sought (g) Issues
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II. |
Issue 1: Injuncting planning objections
Limb 1: Threshold test (a) Legal framework (b) Arguments about unreasonableness (c) Adem Mehmet (d) Dr Cross's high hedge complaint (e) David Leslie Baker (f) Oppressive and unreasonable conduct (g) Conclusion on Limb 1
Limb 2: Adequacy of damages
Limb 3: Balance of convenience
Conclusion on Issue 1
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III. |
Issue 2: Injuncting acts of harassment
Limb 1: Serious issue to be tried (a) Early allegations (b) Graham Hurst (c) March 2020 incident (d) Mr Baker (e) Velvets Cottage (f) Agents
Limb 2: Adequacy of damages
Limb 3: balance of convenience
Conclusion on Issue 2
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IV. |
Disposal
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§I. INTRODUCTION
"Since the Dyers moved into this property they have built a swimming pool with three outbuildings, an outbuilding by the hedge bordering Brook Lane, a sunken well, a stable block and a helicopter landing pad. I feel that any further suburbanisation of what is a rural area of outstanding natural beauty should be resisted at all costs."
(a) Parties
(b) Residences
(c) The application
"the planning process was being used by the Defendants for an ulterior and illegitimate purpose, namely to target and to oppress the Claimants and cause them distress." [55]
"the Defendants and each of them have engaged in a deliberate campaign of obstruction to the Claimants' planning applications whatever their merits." [64]
(d) Rival cases
"More recently, I have seen the effect that the harassment of the Defendants has had on my mother. I have been party to numerous conversations around the dinner table when the subject of the harassment that both my parents, and especially my mother have suffered at the hands of the Defendants and especially Mr and Mrs Small and Dr Cross." [7]
(e) Core allegations
"harassment of the Claimants and which the Defendants knew or ought to have known amounted to harassment of the Claimants contrary to sections 1 and 3 of the Protection from Harassment Act 1997 that was calculated to cause and is causing the Claimants alarm and distress." [65]
(f) Terms of injunction sought
"An injunction restraining the respondents, whether by themselves, or by their agents, or howsoever otherwise, from:
a. trespassing onto all or any part of the land known as and situate at Cheynes, Brook Lane, Albury, Guildford, Surrey GUS 9DH;
b. intimidating, threatening or pursuing conduct which amounts to harassment of the Claimants, together or separately, their children, their tenants, servants, agents, visitors or independent contractors;
c. acting in concert, coercing or soliciting others to make unmeritorious objection to the Claimants' planning applications in an oppressive manner;
d. acting in concert, coercing or soliciting others to make unmeritorious high hedge complaints or any other similar objection or application with the relevant local planning authority."
(g) Issues
Issue 1: whether to grant injunctive relief against planning objections – in other words, an injunction that interferes with the respondents' Convention rights under the ECHR;
Issue 2: whether to grant an injunction against other acts of harassment – through a classical American Cyanamid injunction (American Cyanamid Co. v Ethicon Ltd. [1975] AC 396 ).
§II. Issue 1: Injuncting planning objections
a) The "threshold" test (my term): a modification of the American Cyanamid serious issue to be tried test;
b) Whether damages are an adequate remedy;
c) The balance of convenience.
Limb 1: Threshold test
"bad and cruel behaviour, acting in concert with each other to the detriment of our clients to harass, intimidate and interference with our client's planning applications."
(a) Legal framework
"Orders for interim remedies
CPR 25.1
(1) The court may grant the following interim remedies—
(a) an interim injunction
25.1.3
Interim remedies are discretionary and the discretion is exercised judicially within a framework of case law.
25.1.11
In dealing with an application for an interim injunction, the court must seek to give effect to the overriding objective of dealing with the matter "justly and at proportionate cost".
"1 Prohibition of harassment.
(1) A person must not pursue a course of conduct—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section … the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
(3) Subsection (1) does not apply to a course of conduct if the person who pursued it shows —
(a) …
(b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances the pursuit of the course of conduct was reasonable."
"7 Interpretation of this group of sections.
(1) This section applies for the interpretation of sections …
(2) References to harassing a person include alarming the person or causing the person distress."
Article 10 of the Convention – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority.
Article 11 of the Convention
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others …
"freedom of expression constitutes one of the essential foundations of [democratic] society, one of the basic conditions for its progress and for the development of every [person]" (Handyside v. the United Kingdom, Application no.5493/72, 7 December 1976, § 49).
"The legislators who passed that Act [he is there referring to the 1997 Act] would no doubt be surprised to see how widely its terms are perceived to extend by some people. It was clearly not intended by Parliament to be used to clamp down on the discussion of matters of public interest or upon the rights of political protest and public demonstration which are so much part of our democratic tradition. I have little doubt that the courts will resist any such wide interpretation as and when the occasion arises, but it is unfortunate that the terms in which the provisions are couched should be thought to sanction any such restrictions."
"It is necessary to determine, (1) Whether the objective of the measure is sufficiently important to justify the limitation of a protected right. (2) Whether the measure is rationally connected to the objective. (3) Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective. (4) Whether balancing severity of a measure's effects on the rights of the person to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter".
"12 Freedom of expression.
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) …
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression."
(1) At trial, it will be for the respondents (as defendants) to prove on a balance of probabilities that their conduct in making planning objections was reasonable (if it is found to amount to harassment et cetera);
(2) For interim relief, the applicants must satisfy the court that it is likely that they (as claimants) will establish at trial that "publication will not be allowed" (planning objections being "publications" for the purposes of s.12 HRA 1998);
(3) Therefore, at this stage, the applicants must satisfy the court that it is likely that respondents/defendants will not prove reasonableness at trial.
(b) Arguments about unreasonableness
(c) Adem Mehmet
"deliberate pattern of behaviour by the Defendants, whereby the C proposals and their proposals alone attract vehement opposition, and comparable schemes or even those with greater impacts do not merit any objections, and in some cases, positive comments of support from some of the Defendants.
This is evidenced in the sustained campaign of objections mounted by the Defendants in almost every application the Claimants make. In my view, the most serious of which is the proposal reference 20/P/02042, when the level of objections made both in writing and directly to the planning committee persuaded them to refuse planning permission for a development plainly in accordance with the development plan, and against the advice of professional planning officers.
In my opinion the unavoidable conclusion is that for whatever reason, the Defendants hold a particular and personal disdain for the Claimants, which has sadly manifested in a deliberate campaign of obstruction to their planning applications, irrespective of the merits of those schemes.
This concludes my assessment of all applications made by the Claimants since 2006. I have observed occasions when the Defendants raise arguable planning matters. At the same time, there are numerous and repeated instances of non-planning issues being raised, including suggestions that plans are inaccurate or untruthful, disruption or even harm to persons from construction traffic, exaggerated claims about harm to AONB or Green Belt where the Council raise no such concerns, and numerous claims about excessive noise.
In my opinion, the most concerning example is the events that transpired in relation to application 20/P/02042, where the level of objection was wholly disproportionate to the scale of the proposal and culminated in the Planning Committee overturning the Officer recommendation and refusing planning permission against their advice. It appears highly probable that this was the direct result of intervention by the Defendants
…
Finally, returning to the original scope of my instructions, I am asked whether the primary focus of the Defendants objections to the Claimants applications is personal to the Claimants or grounded solely in land use planning matters. In my opinion, the actions of the Defendants are indeed motivated by their personal grievances with the Claimants. This is the inescapable conclusion reached from a comprehensive review of all of the evidence.
Yours sincerely
Adem Mehmet"
"I have previously advised Cs [Mr and Mrs Dyer] in relation to various planning applications made by them at their properties Velvet [sic] Cottage and Cheynes Cottage on Brook Lane, Guildford, as well as directly advising their architectural team in preparing the required plans and drawings, and on appeal matters in respect of some of these applications."
(d) Dr Cross's high hedges complaint
"On 21 January 2021 the Fourth Defendant [Dr Cross] made a complaint to Guildford Borough Council in respect of allegedly high hedges on the boundary of Cheynes. The Claimants dispute the basis of the Fourth Defendants high hedges complaint as spurious and aver that reducing the height of the hedge would have no material improvement on the 4th D's property the Cannons.
The high hedges complaint was made at about the same time as the Second and Fourth Defendants objected to application 20/P/02042 (infra) on 23 December 2020 which the Claimants suggest indicates how they were acting together."
"6 Cannons is a detached house south of Brook Lane. The appeal hedge comprises a row of Leyland cypress trees that have been well maintained at about 7.9m high from the base of the stems. The branches and foliage knit together to form a barrier to light and access. It is on the opposite side of the single carriageway Brook Lane to Cannons and extends across the full width of the frontage of Cannons. It continues for some a distance either side.
23 The AHH indicates that the current height of the hedge is highly likely to cause an unacceptable loss of light to the garden and habitable rooms of the complainant's property. I also consider the hedge is a serious visual intrusion into the field of view from Cannons. I therefore conclude that taking these together the hedge adversely affects the reasonable enjoyment of the complainant's property.
27 Balancing the interests of the Parties I conclude that the effect on the reasonable enjoyment of Cannons outweighs the interests of the hedge-owner taking particular account of privacy and visual amenity. I conclude that action to reduce the height of the hedge is appropriate under the Act.
Conclusion: the harm caused by the hedge outweighs other factors and that remedial action is justified."
(e) David Leslie Baker
(f) Oppressive and unreasonable conduct
'(1) There must be conduct which occurs on at least two occasions;
(2) which is targeted at the claimant;
(3) which is calculated in an objective sense to cause alarm or distress;
(4) which is objectively judged to be oppressive and unacceptable;
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: 'torment' of the victim, 'of an order which would sustain criminal liability."
"It is the local residents group and I believe the vehicle and means by which the Defendants conspire together to obstruct not only our development of our property, but also other independent developments in the area which do not have any direct effect on the members."
"Greetings All. In 2005 a number of Brook residents came together to form the Brook Residents' Group (BRG). Its objectives were simply to encourage social and neighbourly activities for local residents and to preserve and enhance the countryside around us. It could be claimed that this excellent WhatsApp group has, to an extent, superseded the role of BRG. Partly for this reason and partly through lethargy we have not held an AGM for a few years. However, there are a number of significant topics that need to be discussed, not least the future of BRG itself, and it therefore seems sensible to hold an AGM. It will take place in the Barn Church at Farley Green on the 22nd June at 8pm. All members of this group are encouraged to attend and if anybody has any subject that they would like to be aired perhaps they would let me know. [email address provided]. An agenda will be circulated before the meeting. Best wishes."
"The Brook Residents Group was set up following a meeting of various local property owners which the Second Defendant organised. The Group was established at a time when we were all suffering significant disturbance from the Claimants and their late-night parties and frequent helicopter flights. It made living on Brook Lane awful. The Group was established to encourage neighbourly and social activities and in an attempt to have better engagement with the planning officers."
"it is the fact that the Claimants own the land in respect of which the application is being made which dictates whether an objection is made."
(g) Conclusion on Limb 1
Limb 2: Adequacy of damages
Limb 3: Balance of convenience
"damages are highly unlikely to be an adequate remedy where the respondent is at risk of suffering breaches of Articles 10 and 11."
Conclusion on Issue 1
§III. Issue 2: Injuncting acts of harassment
(1) Is there a serious question to be tried? If the answer to that question is "yes", then two further related questions arise; they are:
(2) Would damages be an adequate remedy for a party injured by the court's grant of, or its failure to grant, an injunction?
(3) If not, where does the "balance of convenience" lie?
"Principle 3
It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on the written evidence as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.
Principle 5
It was to mitigate the risk of injustice to the claimant during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction."
Limb 1: Serious issue to be tried
(a) Early allegations
(b) Graham Hurst
"In September 2018 the First Claimant had cause to apply for an injunction restraining one Graham Hurst from harassing the Claimants or anyone else lawfully on the claimants property the allegation is that on an afternoon in April 2018, Mr Hurst drove his Land Rover motor car directly at the First Claimant and on the evening of 25 August 2018, drunkenly accosted and abused the Claimants and their family upon their returning to Cheynes from the races by helicopter and drove his motor car at the Claimants and their family. Despite otherwise having no involvement in the incident, the applicants allege that the Second Defendant organised the creation of a "fighting fund" to pay for Mr Hurst's legal costs."
"Graham Hurst, a local shepherd who runs his flock of sheep on some land in the local area. The Claimants had purchased a small field on the edge of that land and in or around 2019 Mr Hurst saw a large executive helicopter land in that field very close to the pregnant ewes which he owned. He drove his Land Rover to the field and, angry that the welfare of his animals had been endangered, he remonstrated with the pilot and occupants, who included the Claimants."
(c) March 2020 incident
"One of the most recent incidents with both Mr and Mrs Small occurred just after the former Prime Minister Boris Johnson was admitted to hospital as a result of him contracting Covid-19. This was in late March 2020. I was out walking our dogs and I happened to walk past both Mr and Mrs Small. As I was walking past, I made a comment to both Mr and Mrs Small to say that it was awful that Boris Johnson has gone into hospital with Covid-19. In response1 both Mr and Mrs Small started having a go at me about my husband Mark and the fact that some razor wire had been placed on top of the fence. Both Mr and Mrs Small said how dare we put up razor wire on the fence. I responded to say that I was aware that it was not very pretty and that the razor wire may have been put up incorrectly. I reassured Mr and Mrs Small that we were to sort the issue out and that they should not worry about it.
Mr Small then went into a tirade about my husband Mark and started asking what his motive was for putting up the razor wire and stated that my husband Mark obviously had a mental problem for doing these things. Mr Small continued that the razor wire was needed because so many people do not like my husband Mark. He stated that it was clear that my husband Mark was clearly paranoid that someone was going to attack him and that was the reason for the razor wire being put up. I found all of these comments to be frightful. I carried on with my walk and ended up in tears and I rang up my mother-in-law for solace as I was crying as a result of the things that had been said to me by Mr and Mrs Small during my walk. I could not take the way in which Mr and Mrs Small talked to me about my husband Mark."
"On and around November 2020 and again in 2021 and 2022, I noticed that drones were being flown over my wife's property. Given the issues that we have had with the Defendants and our privacy, these overflying drones made my wife feel anxious as it was another form of being watched and monitored. This is another example of the Defendants harassing my wife."
(d) Mr Baker
"At about 17:45 on 6 June 2021 Baker set fire to the fence marking the boundary between Cheynes and the Crossing, deliberately damaging the fence."
"It will be the Claimants case that Baker conduct pleaded supra was but part of the continuum of activity designed and intended by him and the Defendants to intimidate and harass the Claimants and is attributable to the Defendants and each of them." [§40]
"The Fourth Defendant accepts having helped Baker write correspondence in breach of the interim injunction granted on 22 June 2021, (i.e., after the arson incident,) although he denies knowledge of its terms." [§39(iv)]
"I have helped Mr Baker to write documents and letters, but simply as a "good neighbour", essentially a typist at his direction. I am now aware that there were two occasions when I helped prepare correspondence for Mr Baker which was in breach of the terms of his injunction, however I was not aware of the terms of the injunction at that time (and I do not think that Mr Baker understood them) and I simply did as he asked me to." (§86, B1030)
(a) Velvets Cottage
(b) Agents
"I said I have some legal documents for you and he asked who they were from, I explained the covering letter is headed Lombard Legal, he immediately exploded into a massive rage, shouting very loudly at me in a very very aggressive manor, stating, ''I have told everyone to DO NOT come to my property with legal papers, I have also told them all that I will only except legal papers through the post, so bugger off my property "NOW" and do not return, you are also trespassing so get off my property". I advised him that I will need to leave the documents on the ground for your attention, l then threw them on the ground from my driver's window, photograph attached, and marked "A", in a very calm manner and he in turn picked them up and threw them at me through my open driver's window hitting my face, he did this with severe aggression and a glowing red face & still shouting at me at the same time. I then feared for my safety due to the rage and the aggression and swiftly threw them back on the ground and swiftly left the property."
Conclusion on Limb 1
Limb 2: Adequacy of damages
Limb 3: Balance of convenience
Conclusion on Issue 2
§IV. DISPOSAL
(b) the court may grant an interim remedy before a claim has been made only if –
(i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice;
(1) Issue 1: the application for injunctions to restrain objections to planning applications made by Mr and Mrs Dyer or either of them fails on all three limbs and is dismissed;
(2) Issue 2: the application for injunctions to restrain other alleged harassment fails on all three limbs and is dismissed;
(3) There is no urgency for the purposes of pre-issue or pre-action injunctive relief;
(4) There are no interests of justice that justify granting pre-issue or pre-action relief.
"Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having."