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England and Wales High Court (King's Bench Division) Decisions
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Cite as:  EWHC 965 (KB)
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| MAIDSTONE BC
|- and -
|(1) GOLIEA BRAZIL
(2) MOSES BRAZIL
(3) BILL WEBB
(4) DEAN MARNEY
(5) PERCIVAL POWELL
(6) ROBERT JOHN NICHOLLS
(7) SHARON SMITH
(8) PERSON OCCUPYING CARAVAN ON LAND IDENTIFIED AS PLOT 5
(9) PERSON OCCUPYING CARAVAN NO. 1 ON LAND IDENTIFIED AS PLOT 6
(10) PERSON OCCUPYING CARAVAN NO. 2 ON LAND IDENTIFIED AS PLOT 6
(11) PERSON OCCUPYING CARAVAN NO. 3 ON LAND IDENTIFIED AS PLOT 6
(12) PERSON OCCUPYING CARAVAN ON LAND IDENTIFIED AS PLOT 8
(13) ALFIE DOYLE
(14) ASHLEY DOYLE
(15) PERSON OCCUPYING CARAVAN ON LAND IDENTIFIED AS PLOT 11
(16) PERSON OCCUPYING CARAVAN ON LAND IDENTIFIED AS PLOT 13
(17) PERSON OCCUPYING CARAVAN NO. 1 ON LAND IDENTIFIED AS PLOT 15
(18) PERSON OCCUPYING CARAVAN NO. 2 ON LAND IDENTIFIED AS PLOT 15
(19) JOHN HARRIS
(20) CHARLIE HOLDEN
(21) LOUISE COOPER
(22) LOUISE PRIOR
(23) ANTHONY COOPER
Mr Simon Bell (instructed by SJM Planning, under the Bar Licensed Access scheme) for the First, Second, Third and Thirteenth Defendants
Mr Robin Green (instructed by Clarke Kiernan) for the Twentieth, Twenty-First, Twenty-Second, and Twenty-Third Defendants
Hearing dates: 30th March 2023
Crown Copyright ©
His Honour Judge Antony Dunne (sitting as a Deputy Judge of the High Court):
|Defendants 1 and 2 (D1 and D2) - Goliea Brazil and Moses Brazil. GB registered proprietor of TT62494 described as plot 1.|
|Defendant 3 Bill Webb Occupier of plot 4.|
|Defendant 4 Dean Marney Occupier of plot 5|
|Defendant 5 Percival Powell Registered proprietor of K630158|
|Defendant 6 Robert John Nicholls Registered proprietor of TT96383, described as plot 7|
|Defendant 7 Sharon Smith Occupier of plot 5 as at 13.9.21|
|Defendant 8 Person occupying caravan on land identified as plot 5|
|Defendant 9 - Person occupying caravan no.1 on land identified as plot 6|
|Defendant 10 - Person occupying caravan no.2 on land identified as plot 6|
|Defendant 11 - Person occupying caravan no.3 on land identified as plot 6|
|Defendant 12 - Person occupying caravan on land identified as plot 8|
|Defendant 13 and 14 Alfie and Ashley Doyle occupiers of land identified as plot 9|
|Defendant 15 - Person occupying caravan on land identified as plot 11|
|Defendant 16 - Person occupying caravan on land identified as plot 13|
|Defendant 17 - Person occupying caravan no.1 on land identified as plot 15|
|Defendant 18 - Person occupying caravan no.2 on land identified as plot 15|
|Defendant 19 John Harris owner/occupier of the rear part of the land in 2019|
|Defendant 20 Charlie Holden occupier of a plot on the Land|
|Defendant 21 Louisa Cooper occupier of plot 11 since 2020|
|Defendant 22 Louise Prior occupier of a plot on the Land|
|Defendant 23 Anthony Cooper Occupier of plot 11 since 2020|
In this judgment the Defendants will be referred to by the number they have been assigned in these proceedings.
Terms of the injunction sought.
"1. In relation to the Land known as "Land at Three Sons, Hampstead Lane, Nettlestead, ME18 5HN" ("the Land") as shown edged black on the attached plan, the Defendants, whether by themselves or by instructing, encouraging or permitting any other person:
(i) Must not bring onto the Land any further caravans and/or mobile and/or portable structures such as storage containers and/or lorry bodies for the purpose of human habitation or residential occupation or any other purpose in breach of planning control;
(ii) Must not bring onto the Land any portable structures including portable toilets and/or storage containers and/or lorry bodies or any other items and paraphernalia for purposes associated with human habitation or residential occupation or any other purpose in breach of planning control;
(iii) Must not bring onto the Land any further waste materials and/or hardcore and/or like materials for any purpose, including the creation/laying of hardstandings or hard surfaces, in association with the use of Land for the stationing of caravans and/or mobile homes for the purpose of human habitation or residential occupation or any other purpose in breach of planning control;
(iv) Must not carry out any further works in relation to the formation of paths, roadways or any works including the provision of sewerage, water and electricity infrastructure associated with the use of caravans and/or mobile homes for the purpose of human habitation or residential occupation or any other purpose in breach of planning control;
(v) Must not carry out any further works to the Land associated with or in preparation for its use for stationing caravans and/or mobile homes for human habitation or residential occupation or any other purpose in breach of planning control;
(vi) Must not undertake any further development on the Land as defined in section 55 of the Town and Country Planning Act 1990 without the express grant of planning permission;
(vii) Must remove all hardstanding, fencing, buildings, mobile homes and touring caravans on the Land."
As can be seen, requirements 1(i)-(vi) are prohibitory in nature and seek to maintain the status quo. Item 1(vii) is mandatory in nature and requires the Defendants to remove all development from the Land and restore it to its previous condition.
Planning history of the Land
Personal circumstances of the Defendants
"(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."
First, the court's jurisdiction is an original one and not a supervisory one, but it will not normally investigate the planning merits of the local planning authority's decisions.
Second, however, the court has a discretion and should decide for itself whether to grant the injunction and should not do so automatically just because a local planning authority seeks one. This discretion must be exercised judicially.
Third, the Court must not only be satisfied that the defendants intend to breach planning law but also that, in all the circumstances, it is proportionate and just for the court to grant an injunction, taking account, amongst other things, of the impact that such an injunction will have on the defendants, including their rights to private and family life under Article 8 of the European Convention on Human Rights.
Fourth, because the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion could be exercised in favour of granting an injunction from those in which it should not. Helpful guidance on the relevant factors to be taken into account is to be found at paragraph 38-42 of the judgment of Brown LJ in the Court of Appeal in South Bucks v Porter which is quoted by Lord Bingham.
"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."
"Thus the Secretary of State was entitled to have regard to the personal circumstances of the Gipsies, as he did in the cases of Mr Berry and Mrs Porter. When application is made to the court under s.187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and none the less resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances."
"86. Therefore, it is not for the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. Moreover the court is as well placed as the local planning authority to decide whether the considerations relating to the human factor outweigh purely planning considerations; the weight to be attached to the personal circumstances of a defendant in deciding whether a coercive order should be made against him is a task which is constantly performed by the courts."
"25. In our judgment, the judge's decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the court upholding the important principle that the orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent.
26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.
27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour the essential suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control."
"(i) The public authority decision maker must be aware of the duty to have 'due regard' to the relevant matters;
(ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
(iii) The duty must be 'exercised in substance, with rigour, and with an open mind'. It is not a question of 'ticking boxes'; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
(iv) The duty is non-delegable; and
(v) Is a continuing one.
(vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty."
The parties' submissions
(1) The Claimant's assessment of the Defendants' personal circumstances has been cursory, at best. The Claimant should have obtained more detailed information about the Defendants' personal circumstances. In addition, there has been insufficient consideration of the information supplied during the course of these proceedings, including the Defendants' witness statements.
(2) The Claimant's consideration of its public sector equality duty does no more than pay lip service to it. The medical conditions of some of the Defendants amount to disabilities and consideration has not been given to this protected characteristic.
(3) In breach of the Planning Policy for Traveller Sites, the Claimant has failed to provide enough caravan sites within its area to meet existing need. Although the Claimant has power under s24 of the Caravan Sites and Control of Development Act 1968 to provide sites to meet this need, there is no suggestion it is going to.
(4) There is no suitable alternative lawful site for the Defendants to move to.
(5) The Defendants are plainly vulnerable individuals with serious medical conditions requiring a stable base and regular access to medical services. The children of the Defendants will be particularly affected as many of them are settled in local schools.
(6) Neither Green Belt nor flood risk policy is an absolute bar to the grant of a permanent or temporary planning permission, and the grant of such a permission in the future cannot be ruled out. D20-D23 submit that relief should be refused to allow for the grant of temporary planning permission whilst the Claimant provides the further sites it says it is in the process of arranging. It is said that a temporary planning permission has previously been granted for D1 and D2 and there is no reason why a further temporary (or permanent) planning permission should not be granted.
(7) Given the Defendants' personal circumstances and the lack of any suitable alternative accommodation, the hardship that would be caused to them if required to leave their pitches would be severe.
(8) The grant of an injunction at this stage would not be just and proportionate.
Availability of other sites
Enforcement and breaches of planning control
(a) All of the Defendants moved onto the Land without seeking planning permission to station caravans on it, or to build permanent structures upon it.
(b) Only D1, D2, D3 and D4 have sought retrospective planning permission for their development of the site. No other Defendant has sought any form of planning permission. It is said by Mr Mackay and the Defendants that this is because the Claimant has refused determine further planning applications following its refusal to determine a planning application in 2017. This is a reference to the refusal by the Claimant to determine a planning application made on 19th July 2017, using its powers under section 70C of the TCPA 1990. Section 70C provides that a local planning authority may refuse to determine a planning application where an enforcement notice is in place. In this case an enforcement notice had been in place since 2nd October 2015 and has been upheld by the Planning Inspectorate in its decision on 1st June 2017. The Claimant was therefore entitled to exercise its discretion under section 70C to prevent further delay in the enforcement of planning control on the Land. In addition, the Claimant did exercise its discretion to determine other planning applications, including from D3 and D4 made on 29th August 2018. I conclude that the Claimant's refusal to determine planning applications using its discretion under section 70C TCPA does not provide any of the Defendants with an excuse to continue to occupy the Land without applying for planning permission. The Claimant could not have made its position much clearer. Development of the land is a breach of planning control and the remedy for this breach is for the Defendants to leave the land and to return it to its former state. I find that the occupation by D5-D23 of the Land without applying for planning permission is a flagrant breach of planning control. I also find that the occupation by D3 and D4 of the Land following their failed applications for retrospective planning permission is also a flagrant breach of planning control.
(c) The injunction order of 21st July 2017 prevented further development on the Land. D3, D13, D20 and D22 all say in their evidence that they occupied the Land prior to the imposition of this injunction. D21 and D23 say they moved onto the Land after the imposition of the injunction. I have concluded at paragraph 13 above that D3 and D13 had knowledge of the injunction in 2017. Both D3 and D13 say that they moved their partners and their children onto the site in 2020 at a time when they were aware of the injunction, and in breach of it. In addition, Mr Whittaker observed that the plot occupied by D13 and D14 had been developed further between his visits to the Land in February and September 2021. I therefore find that D3 and D13 knowingly breached the terms of the 2017 injunction order. As the cases of Brown and Gammell make clear the Court should not be prepared to tolerate breaches of section 187B injunction orders with impunity and D3 and D13's knowing breach of the 2017 injunction order is a strong public interest factor in favour of the grant of relief against them. In relation to D20-D23, their occupation and development of the Land is in breach of the terms of the injunction. However, they say that they were not aware of the injunction order, and I find that there is insufficient evidence before me that they have knowingly breached its terms.
Previous planning decisions
Decision 1 Plot 1 Moses and Goliea Brazil (D2 and D1) appeal against enforcement notice Decision date 1.6.17
Decision 2 Plot 4 - Bill Webb (D3) appeal against refusal of retrospective planning permission - Decision date 6.4.2020
Decision 3 Plot 5 - Dean Marney (D4) appeal against refusal of retrospective planning permission - Decision date 6.7.2021
"It is likely that expected changes to the planning circumstances that are likely to occur in the period of 5 years, with the adoption of the emerging plan and subsequent site allocation Development Plan Document will significantly alter the overall balance in this case. I conclude that the considerations in support of this appeal, as listed above, taken together clearly outweigh the harm that would result to the Green Belt by reason of inappropriate development and other harm so as to justify the grant of a temporary planning permission for part of the appeal site for the period of 5 years on the basis of very special circumstances."
Decisions 2 and 3
The likelihood of further breaches
The Claimant's decision to apply for an injunction relevant considerations.
"4.2. ..The temporary 5 year permission granted by way of this appeal for plot 1 at the front of the site expired on 1st June 2021. This now means that none of the development at the site benefits from planning permission."
The temporary planning permission for Plot 1 occupied by the first and second defendants did not expire until 1st June 2022. The decision to apply for an injunction for plot 1 on the basis that it was in breach of planning control was wrong and the injunction application was made whilst D1 and D2 still had planning permission. This flaw undermines at a fundamental level the claimant's decision to apply for an injunction in relation to D1 and D2, but not in relation to the other defendants.
Previous planning decisions
Availability of sites
"7.13 The Council must also consider the personal circumstances of the Owners and Occupiers and the best interests of the Owners and Occupiers children when considering proportionality. The Owners and Occupiers personal circumstances and best interests of the children may be sufficient to make the proposed action disproportionate.
7.14 In this case not all of the personal circumstances of all of the occupants are known, indeed there appear to be new occupants of the site since a visit in February 2021 and information from the land registry set out above may indicate that further plots within the site may be occupied shortly. By way of the reasoned decision made the Planning Inspectors in the case of the two recent appeal decisions, this gives a good indication that whilst not all is known at this stage the personal circumstances of the occupiers of the site in relation to possible, health, educational and or wellbeing are unlikely to be such that they would outweigh the considerable planning related harm caused by their continued occupation of the site. With no indication that any of the occupants intend to leave the site despite the planning appeals and existing enforcement notices on the land, an Injunction in this instance which will force them to leave, is considered to be an appropriate and proportionate response."
"7.20 It is known that there are children on plots 4 and 5 and the impact upon their best interests were considered by each Inspector with each decision. There are also children on plots 8 & 9, however their particular circumstances are currently unknown. A child previously with the family on plot 7 is no longer there as the plot is now vacant. There may also be children residing on other plots which we are not aware of. Some of the possible outcomes in respect of the best interests of any children residing on site are considered below:-
Stay living on the Site: - Staying on the Site is considered to be the best outcome as it will maintain the Children's current way of life and will cause the least amount of disruption.
Live on the roadside: - Living on the roadside is not considered to be a particularly safe or secure environment for a child. There would be little access to safe recreational areas and it would potentially have a negative impact on the continuity of the Children's' education
Live in bricks and mortar accommodation: - Living in bricks and mortar would not preserve the Children's' traditional way of life or links with extended family. There is no guarantee that a house would be available as housing options are dealt with on a priority basis.
Live in care: - Living in care is not a desirable outcome for any child and this is considered to be the worst outcome.
7.21 Some of the children on site are of school age and likely attending local schools and so seeking removal of the occupants of the site may have an impact on their schooling and or medical needs if attending a local doctors. Both of these circumstances were considered by the Inspectors in dismissing both appeals on the site as set out above and as such this is a good indication that if the remaining children on site had similar health and educational needs, they would not be enough, either individually or cumulatively with all the other matters to be considered, to outweigh the considerable planning and environmental harm caused by the occupants remaining on site."
(a) The Claimant had made reasonable efforts to secure information to conduct a meaningful welfare assessment and to assess the hardship an injunction would cause. It had conducted two site visits in 2021 and had attempted to ask questions of the occupants of each and every occupied plot. I do not have evidence as to whether these questions were focussed on the issue of the Defendants' welfare, but the questions asked did secure a significant quantity of relevant information about the personal circumstances of the Defendants. In addition, the Claimant did consider the personal information supplied by those Defendants who had made planning applications.
(b) The Claimant did consider the interests of the children of D3, D4 and D13 when considering the hardship the injunction would cause. The impact on the children was the issue which was most likely to outweigh planning harm. The Claimant also considered the obvious hardship that would be caused to the Defendants if they were forced to move from this settled site onto the roadside. I do not consider that any other personal circumstances of the Defendants which were not taken into account by the Claimant would have materially altered the planning balance in this case. In reaching this conclusion I note that Policy E of the PPTS provides that only the best interests of the child are likely to outweigh the planning harm of inappropriate development in the Green Belt.
Equality Act 2010
"7.22 S.149 of the Equality Act 2010 provides that a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination harassment victimisation against gypsies or travellers, advance equality of opportunity and foster good relations. This means having due regard, in particular, to the need to remove or minimise disadvantages, take steps to meet the needs of and encouraging them to participate in public life or in any other activity in which their participation by such persons is disproportionately low. Should the injunction proceedings be continued what adverse impacts would there be? Their traditional way of life leads gypsies and travellers to frequently come into conflict with other persons. Each time they camp, without permission, the relationship with the local community is strained. In this context the welfare needs of the occupants and their wish to maintain their traditional way of life and their aversion to bricks and mortar need to be considered. There is benefit in avoiding unauthorised encampments."
Proportionality and the balancing exercise
"7.23 It is considered that the most likely consequence of the Owners and Occupiers being evicted is them living on the roadside. It must be considered therefore whether it would be more appropriate to wait until a supply of sites is available before evicting the Owners and Occupiers so as to avoid them having to live on the roadside
7.26 This matter has been continuing for many years and has involved the refusal of a number of planning applications, the issuing of Enforcement Notices and Stop Notice, and an Injunction. Officers have regularly visited the Site and made it clear that the occupants are residing there unlawfully.
7.27 Officers therefore consider this to be a prolonged and flagrant breach of planning control where conventional measures to secure compliance have failed over a long period. The occupants have been aware that they have been residing there illegally since 20??, and no evidence has been presented to the Council that effort has been made to secure alternative accommodation or to seek to regularise the matter during this time.
7.29 The Council is currently able to demonstrate a five-year supply of deliverable sites but is unable to identify any alternative sites to which the occupants would be able to relocate were a court to order that they cease occupation of the Site. The hardship of requiring families with children to move off the Site must be afforded significant weight as must be the medical and welfare needs of all occupants against the importance of upholding planning legislation and protecting the environment.
7.30 Therefore taking all of the particular circumstances of this case into account and with no indication that any of the occupants intend to leave the site despite the planning appeals and existing enforcement notices on the land, an Injunction in this instance which will force them to leave, is considered to be an appropriate and proportionate response."
(a) It erroneously concluded that their temporary planning permission had expired, and their occupation of the site was in breach of planning control;
(b) It gave no consideration to the personal circumstances of D1 and D2; and,
(c) It gave no consideration to the fact that D1 and D2's occupation of the site involved less significant breaches of planning control than the breaches by D3-D23.
Defendants 3 to 23
(a) The Defendants have conducted significant development of Land in the Green Belt, to the extent that they have entirely transformed it. This is a serious and significant breach of planning control.
(b) There have been extensive attempts by the Claimant to address this serious breach of planning control by enforcement action, including by a previous s187B TCPA injunction. These attempts have all failed. The number of pending land registry applications is evidence that there will be further breaches of planning control. In my view, without this injunction, future enforcement attempts will continue to fail.
(c) The breaches of planning control by D3-D23 have been flagrant. In the case of D3 and D13 the breaches have been particularly flagrant as they have knowingly breached the terms of the July 2017 injunction order.
(d) The grant of an injunction will cause the Defendants hardship. However, this hardship is outweighed by the degree of planning harm, the flagrancy of the breaches of planning control by the Defendants and the failure of other methods of enforcement over many years.
(a) Two previous decisions of the planning inspectorate have found that the personal circumstances of D3 and D4, who both have children, do not outweigh the public interest in planning control.
(b) The Claimant has given adequate consideration of the personal circumstances of D3-D23 before applying for this injunction.
(a) the decision in Brentwood Borough Council v Ball and Others  EWHC 244 QB to refuse an injunction and which is said to be based on similar facts to this case; and
(b) the decisions in Porter which, it is said, provide authority for the proposition that there is no special treatment for unauthorised traveller sites on the Green Belt and where injunctions were overturned because judges at first instance had failed to give sufficient regard to the personal circumstances of the occupiers.
(a) It is correct to say that the Court of Appeal did overturn three section 187B injunctions, two of which related to development in the Green Belt. However, it seems to me to that the submission at paragraph 10 of D20-D23's skeleton argument that judges at first instance failed to have proper regard to the personal circumstances of the occupiers, misses some of the Court of Appeal's essential reasoning. In Porter, the judge at first instance considered that questions of hardship were entirely foreclosed; in Searle, the judge had, in focussing on the lawfulness of the Claimant's application, taken too restrictive a view of the exercise of the discretion he was called upon to exercise; and in Berry the Court of Appeal concluded that the judge had erred in regarding the Chapman case as effectively determinative of the application before him. The flaws in the reasoning behind the grant of the three injunctions in Porter and others were therefore more specific than merely giving insufficient weight to the interests of the occupier, where the judges, self-evidently, did not have the benefit of the guidance of the House of Lords in Porter. In this case, the Court has sought to carefully follow the guidance of Porter in conducting the balancing exercise between the competing interests in this case.
(b) In addition to the three injunctions the Court of Appeal overturned in Porter and others, it upheld one injunction in the case of Hertsmere v Harty and Others. In that case the judge granting the injunction carefully scrutinised the Claimant's decision to apply for an injunction, and gave consideration to the personal circumstances of the Defendants. Brown LJ's comments in that case [at 57] are of relevance:
"57. My views on this fourth appeal have, I confess, shifted more than once during the course of the hearing. At various stages I was inclined to accept Mr Drabble's criticisms of the all-important officer's report and of the council's decision in reliance upon it not merely to refuse planning permission but immediately to apply for an injunction. The critical question, however, is whether in the end the judge when granting injunctive relief deferred excessively to the local authority's own views as to how the balance between the competing interests fell to be struck. Looking at that question as a matter of substance rather than form I am not ultimately persuaded that he did. Rather, I have reached the conclusion that he recognised the true width of his discretion and exercised his own independent judgment in deciding that the time had finally come to bring the unlawful use of this site to an end. That was, I have to say, an entirely understandable judgment given the quite remarkable planning history of this site."
In this case, I have, following the guidance of Brown LJ [at 39] and Lord Bingham [at 31], accorded respect to the views of the Claimant on the balance to be struck between the competing interests in this case. However, I have formed my own independent view, that in this case, the personal hardship of D3-D23 is outweighed by the planning merits of the grant of an injunction.
Therefore, the submissions on the impact of the decision in Porter and others does not change my view that an injunction against D3-D23 is just and proportionate.
Defendants 1 and 2
(a) Temporary planning permission was granted to D1 and D2 by the Planning Inspectorate because their personal circumstances outweighed planning harm. The permission was granted on the basis that further sites would become available in the period of the permission which would change the planning balance in favour of refusal of planning permission. However, further sites have not become available, and the planning balance has not therefore changed.
(b) D1 and D2 have had the benefit of temporary planning permission between 2017 and 2022 and they have not breached planning control with the same degree of flagrancy as D3 - D23.
(c) In making its decision to apply for this injunction against D1 and D2, the Claimant failed to give adequate consideration to the circumstances of their case, including their personal circumstances.