HH Judge Anthony Thornton QC:
(1) General introduction
- This judgment is concerned with applications for injunctions in three separate part 8 claims which were issued separately in June 2012 but are closely related and were heard together. The claimant is New Forest District Council ("NFDC"). It is the local planning authority for the area of Hampshire that includes Merryfield Park, Bransgore, Hants ("the site") which was the site of RAF Sopley Camp until it was closed in 1974. The site, save for two units on its eastern edge, is now owned by a partnership or joint venture comprising three members of the Baily family and a company called Peter Hilton (Wickham) limited ("the co-owners") who run the site as a training activity centre. Both the site and the co-owners' business are known as Merryfield Park and about 100 units that were originally constructed to form the RAF camp remain on the site. These were all constructed as military-style single-storey buildings within the site and were and are still linked by an interconnecting system of roads and footways. The site has been subject to Green Belt policies since 1958 and it became part of the Green Belt when this was subsequently established by NFDC.
(2) The relief sought
- NFDC is claiming injunctions against Mr and Mrs Owen ("the Owens"), Mr and Mrs Greenshields ("the Greenshields") and Mr Malem that would require them to cease using, respectively, units 92, 93 and 91 for residential purposes and to remove all personal belongings associated with their residential use of these units in breach of a planning enforcement notice dated 27 September 1995 ("EN"). Each claim is made under section 187B of the Town and Country Planning Act 1990 ("TCPA") and these applications are seeking the injunctions as permanent injunctions or as interim injunctions until trial or further order on the basis that none of the defendants has a defence to the claim against them.
- Section 187B of the TCPA provides that:
"187B Injunctions restraining breaches of planning control.
(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."
- Section 187B is in wide terms since it authorises a local planning authority to seek, and a court to grant, a permanent or interim injunction in either mandatory or negative terms to prevent or put an end to any breach or threatened future breach of planning control. The injunction may be granted against anyone involved in the actual or threatened breach including the site owner or occupier and any participant in the breach. The injunction may be sought by way of a Part 7 claim or by way of a Part 8 claim if the claim is unlikely to involve a substantial dispute of fact. The powers to apply for and to grant injunctions that are provided for by section 187B are intended to support a local planning authority's use of its enforcement powers to ensure compliance with planning legislation and its obligations to protect the environment.
(3) Procedural matters
- In these cases, NFDC considers that the defendants' breaches in using their respective units for residential use are both obvious and without justification and that it has made repeated but unsuccessful attempts to persuade the defendants to desist from their unlawful use of their respective units for residential purposes so that it now has no alternative but to seek injunctions which can be enforced if necessary by compulsory action. It has therefore issued its claims as Part 8 claims and is now seeking what is in effect summary judgment for mandatory injunctions against each defendant without the necessity of incurring the time and cost of full trials. In the alternative, it is seeking interim injunctions until a full trial or further order.
- NFDC is perfectly entitled to adopt this procedure since, although it is seeking permanent injunctions which are mandatory in form, Mr Paul Brown QC, who represented NFDC with Ms Lisa Busch, accepted that injunctions of this type should only be granted if the defendants have no reasonable prospects of succeeding in their respective defences at a full trial.
- None of the defendants has been legally represented at any stage in this dispute and they were not legally represented at the hearing. It became clear during the hearing that each defendant has a number of potentially successful defences but since the Part 8 procedure does not provide for defences to be served and there has been no order for the service of witness statements before the hearing, the nature and extent of these defences has required considerable investigation by me. Since I have decided that each defendant has several potentially successful grounds of defence which they never developed before the hearing to claims which NFDC has always regarded as being clear cut and without any prospect of being defended, I have had to provide an unusually full and detailed judgment which declines to grant either summary judgment for final injunctions and or interim injunctions until trial.
- Procedurally, therefore, this judgment merely decides that there are reasonable prospects of the defendants succeeding at a full trial so that the applications for summary judgment and for the grant interim injunctions on an American Cyanimide basis are dismissed. I am not in this judgment deciding whether any of the potential grounds of defence succeeds and any views I express as to the merits of the claims or the potential defences are not binding on the parties save and to the extent of explaining why the claims must go forward for a full trial unless they are settled, stayed, dismissed hereafter or withdrawn.
(4) Representation and the hearing
- Mrs Owen applied to me for permission to represent both herself and Mr Owen at the hearing and, likewise, Mrs Greenshields applied for permission to represent both herself and Mr Greenshields. I granted both applications.
- Mr James Dirks, a retired solicitor who had never possessed higher courts rights of audience, attended the hearing as Mr Malem's McKenzie friend but when the applications were called on, he applied for permission to represent him as a lay advocate. His grounds for making that application were that Mr Malem was extremely anxious and nervous about speaking in court and also suffered from a disability which made it very difficult for him to represent himself. Mr James Dirks explained that he was a friend of Mr Malem and was fully retired and that he had given him informal advice and assistance about his defence to NFDC's claim. In those circumstances, I granted him permission to represent Mr Malem at the hearing.
- The applications were argued over 1½ days with a 3-week interval between the first and second days. Each application was supported by voluminous evidence and each defendant served evidence and written submissions. On the first day, which lasted for about 3 hours, Mr Brown QC made detailed oral submissions and these were followed by very brief submissions by and on behalf of the defendants. The hearing was then adjourned for 3 weeks during which period the defendants served further evidence and submissions. On the second day of the hearing, which lasted a full day, Ms Busch responded on behalf of NFDC to the further materials that had been served since the first day and Mrs Owen, Mrs Greenshields and Mr Dirks then developed lengthy oral submissions in support of the various defences now being advanced.
(5) The decision
- I have decided, having considered all the material presented to me with some care, that it is not appropriate to grant final or interim injunctions against the Owens, the Greenshields or Mr Malem. If NFDC wish to continue to seek injunctions against the defendants, it must do so by proceeding to a full trial. If NFDC wishes to pursue its claims to trial, the particular claim or claims in question should not proceed as Part 8 claims but as a normal high court claim appropriately case managed by the Master that leads to a witness action with appropriate cross-examination of relevant witnesses.
- I have set out my reasons for my decision in parts as follows:
(1) Part B: The essential factual background to the claim (paragraphs 14-24).
(2) Part C: Summary of parties' cases (paragraphs 25-46).
(3) Part D: The relevant planning history of the site (paragraphs 47-85).
(4) Part E: Issues discussed (paragraphs 86-168).
(5) Part F: The Owens' defence (paragraphs 169-191).
(6) Part G: The Greenshields' defence (paragraphs 192-214).
(7) Part H: Mr Malem's defence (paragraphs 215-217).
(8) Part I: The procedural way forward (paragraph 218).
(9) Part J: Conclusion (paragraph 219).
(10) Annex: List of issues discussed in Part E.
B. The essential factual background to the claims
(1) The site
- The site, or Merryfield Park as it has been known as since 1981, is essentially a disused RAF camp situated in the Green Belt on the western edge of the village of Bransgore on the edge of the New Forest in Hampshire. It now comprises about 100 units, the balance of the approximately 150 units originally constructed having since been demolished. It would seem from the evidence of the site manager Ms Hounsell that about 38 of these units are in active use and the remaining surviving units are in varying stages of use and decay. The site is roughly L-shaped and its frontage, being the bottom of the "L", runs along the north side of Derritt Lane. It has an area of approximately 28.53ha which, until the land was requisitioned by the Crown during the Second World War, formed part of the Manners Estate. It lies to the west of the built up area of Bransgore. The site abuts the New Forest National Park to the east, open countryside to the north and west and the edge of Bransgore and open countryside to the south.
- The site, on being requisitioned, was initially used as living accommodation in connection with nearby military installations. In 1952, it was acquired by the Ministry of Defence ("MoD") and the present camp buildings were constructed as RAF Camp Sopley. The camp units included rows of dormitories, an airman's mess, two education buildings and a range of other single-storey buildings. The areas between units were mainly laid to lawn and there are a large number of mature trees that are protected by tree preservation orders. The surviving buildings are all drab, single-storey military camp-type buildings and many are now used for storage and some are derelict. The site is bounded by a perimeter fence and has a gated entrance but this does not provide any real security since the fence is readily capable of being passed through. The units all front the extensive asphalt access road system within the site. Mains electricity provided by the site's own electricity sub-station, water and gas are connected to all units and they are also connected to the site's sewerage system which leads into a large sceptic tank positioned under the adjacent disused playing fields.
- Mrs Owen's evidence included a copy of a survey report by a local chartered surveyor that Mr Baily had obtained in 2011 for the enforcement appeals that were decided at that time. This reported on the condition of the units and it stated that they had been constructed of a Wimpey no-fines concrete form of construction with cast in-situ cavity walls. The roofs currently in place were made of corrugated asbestos or fibre cement sheeting. The structure of the units was basically sound and they could all be refurbished, converted and maintained as fair quality housing with a life expectancy of at least 50 years. The report listed a number of possible other uses for the site in this refurbished condition including social housing, holiday and activity camps and warehousing, leisure and school premises.
- The Baily family, who comprise three of the four co-owners, have lived in Bransgore for many years. Mr Martin Baily, who is the son of his co-owners Mr and Mrs Baily senior, explained in his witness statement that Merryfield Park employ his sister Mrs Hounsell as the day to day manager of Merryfield Park. They principally bought the site to use as an activity training centre and to stop it going to waste and being used by travellers since otherwise it would have been ideal for the travelling community if it was not partly redeveloped and partly converted into open Green Belt land.
(2) Site history
- RAF Sopley Camp was closed in 1974 and until 1979 the abandoned site remained vacant. It was transferred from the MoD to the Home Office in 1979 and between 1979 and 1982 it was used as a Vietnamese Refugees' Resettlement Camp. It was then transferred back to the MoD and soon afterwards, the Property Services Agency ("PSA") was tasked with disposing of it to a private buyer. In the meantime, it was used by various branches of the services until 1989 as a training site and as a rest camp. For three of these years, the Household Cavalry was one of the principal users of the site as an occasional summer and winter camp where soldiers and their horses would spend up to 12 weeks at a time on what were described in contemporary documents as rest activities.
- In 1989, the site was jointly purchased by three members of the Baily family, namely Mr and Mrs Baily and their daughter Ann Baily, and Peter Hilton (Wickham) Limited following a tendering exercise. Regrettably, the particulars of sale describing the permitted uses of the site at the time of sale do not appear to have survived. This co-ownership has continued to the present time save that the co-owners have sold off the three units that are the subject of these injunction claims, albeit that unit 91 has much more recently been re-acquired by them. The co-owners operate the site as a joint venture partnership with each co-owner having a defined percentage stake in the business.
- The site's principal use is as an activities centre where activities and the training for activities take place on both a visiting and a residential basis. In recent times, these activities have included dog handling and training, fire prevention and control practice and training, adventure ranger training, war games and team building activities, body building and driving and physical exercise training. Participants in the residential activities and training are accommodated in the residential blocks that were built for RAF Sopley Camp and have since been refurbished. There are also education blocks which are used for educational training which is provided in both day and residential courses. Most of these activities take place in a limited number of units or limited areas of the site but there are no defined restrictions on the areas or number of units that any particular activity must be carried out in and a number of different activities can and sometimes do take place simultaneously. It would appear that each activity takes place in its own unit or units.
- At any one time, all or any part of the site can be in use although the actual use made of the site is variable. There are no defined restrictions on the intensity of use or the number of units that may be used at any one time or the number of different activities that may take place at any one time or the number of people using the site at any one time or on the number of days in the year or hours of the day when the site is to be completely unoccupied. All that the definition of lawful use in issue in these applications ("LDC") states is that that use is "on an occasional basis" without defining what that means or how it is to be measured.
- A number of the units are used for storage purposes connected with particular activities that take place on site. Furthermore, a number of units are lawfully used for unconnected storage purposes as a result of long-standing use for such purposes which may no longer be enforced against. Limits on the permitted uses of the site and on particular units have been placed by two enforcement notice appeals in 1997 and 2011, by the terms of LDC issued by NFDC in 2005 which defined the lawful use as "a training and rest camp on an occasional basis including day and residential training, educational and activity courses and ancillary uses" and by a number of other planning application and appeal decisions The units in use are largely used for training or storage, up to about ten are used for overnight accommodation and two are occupied by resident wardens who also act as night watchmen. One of these warden-occupied units, unit 91, is occupied by Mr Malem at the eastern end of the site and the second, unit 30, by Mr Turner in the centre of its western end.
(3) The defendants' interests in the site
- The Owens bought unit 92 from Mr Colin Biddlecombe for £58,000 by a transfer dated 24 August 2006. Mrs Greenshields owns unit 93 having bought it from the co-owners for £110,000 by a transfer registered on 24 August 2011. The Greenshields had moved into unit 93 pursuant to a tenancy agreement made with the co-owners dated 1 February 2011 but this was brought to an end when Mrs Greenshields bought the freehold a few months later. Mr Malem has occupied unit 91 since December 2005 pursuant to tenancy at will granted originally by the co-owners but which was transferred to Mr Biddlecombe when he acquired the unit for a nominal sum in July 2006. In 2012, Mr Biddlecombe transferred ownership of the unit back to the co-owners and a formal service agreement was entered into between Mr Malem and the co-owners dated 1 August 2012 and it is by virtue of that agreement that Mr Malem now occupies unit 91.
- The three units 91, 92 and 93 are located within the perimeter of Merryfield Park and are connected to the same services as the other units there. They are located on its eastern edge at the horizontal tip of the L-shaped site and close to its eastern boundary. Although potentially capable of being completely physically separate from the rest of the site, the only access to these units is via the internal road system and they would remain wholly dependent on the services laid out within the camp if they were separated from it unless they were joined to other service outlets. It seemed from the plan that a separate access directly onto Derrett Lane from any of these units would be either problematic or impossible.
C. Summary of Parties' Respective Cases
- NFDC. The NFDC seeks what would in effect be final injunctions against each of the defendants on the grounds that each is occupying his or their respective unit unlawfully by using it for residential use. It also seeks mandatory orders requiring the removal of what is described as external residential paraphernalia, the removal of all personal belongings and the stripping of services and residential features from each of the three units in question.
- The NFDC relies on two different albeit related bases for contending that any residential use of units 91 – 93 is unlawful. The first is the terms of the LDC dated 9 March 2005 which describes the permitted use on that date as a "training and rest camp on an occasional basis". The second is the requirements of the EN and confirmed as three separate notices by an appeal decision dated 13 March 1997. NFDC also relies on the separate convictions of Mr and Mrs Owen and Mr Malem on 23 September 2010 for contravening the EN as further evidence of its entitlement to obtain permanent injunctions to restrain the residential use of units 91 and 92. It also relied, in the case of unit 92, on Mrs Owen's unsuccessful appeal against the refusal by NFDC of her application for retrospective planning permission to change its use to residential use.
- NFDC are seeking these injunctions because it wishes to secure compliance with its current local plan policy SC-1 which aims to preserve the part of the Green Belt in which Merryfield Park is situated and to restore the whole site as soon as practicable as a Green Belt open site that is free of inappropriate development. It also points to the long history of its attempts to persuade each of the defendants to cease their respective unlawful use of a unit within Merryfield Park and to the assistance it has given to each defendant to find alternative accommodation. It also disputes the relevance and appropriateness of each defendant's reliance on article 8 of the European Convention on Human Rights ("ECHR") and section 6 of the Human Rights Act ("HRA") and on the emerging new local plan policy for Merryfield Park, policy SOP1, and the even newer Green Belt policy promoted by the National Policy Planning Framework ("NPPF") which took effect on 27 March 2012. In short, NFDC contends that it had, at the time it initiated these three claims in June 2012, an open and shut entitlement for a permanent injunction against each defendant.
- NFDC's formal and informal enforcement action.. NFDC have taken the following steps in its attempts to bring the perceived unlawful residential use of units 91 - 93 to an end:
(1) December 2005. Mr Malem first occupies unit 91.
(2) February 2007. The Owens first occupy unit 92.
(3) June 2008. Site inspection. NFDC first become aware that unit 91 has been converted to residential use. NFDC wrote to Mr Malem on 24 June 2008 advising him that if he was residing at unit 91, he would be in breach of an enforcement notice.
(4) 7 August 2008. Site inspection. NFDC first become aware that unit 92 has been converted to residential use and they write to the Owens advising them that if they were residing at unit 92, they would be in breach of an enforcement notice.
(5) 7 October 2008. Mrs Owen was interviewed under caution by an officer of NFDC. She informed the officer that the Owens were not aware of the existence of the EN but stated that she was informed at the time the Owens bought the site from Mr Biddlecombe that the unit could not be used for residential purposes.
(6) 8 October 2008. Site inspection of unit 91. Mr Malem informed the NFDC officer carrying out the inspection that he was renting the property and residing there.
(7) 16 July 2009. Mr Malem informed NFDC when responding to a Planning Contravention Notice that he was renting unit 91 and was residing there.
(8) 22 July 2009. Mrs Owen applies to NFDC for a LDC from NFDC. The application was not registered because insufficient information was supplied with it. NFDC requested further information from Mrs Owen but this was not provided.
(9) 21 April 2010. Mrs Owen submitted an application to NFDC seeking planning permission to change the use of unit 92 to residential use.
(10) 22 April 2010. NFDC applied for the issue of summonses charging, in the first, the Owens and, in the second Mr Malem and Mr Biddlecombe under section 179 of the TCPA for failing to comply with the EN in using or allowing the use of units 91 and 92 for residential use.
(11) 16 June 2010. NFDC refused Mrs Owen's planning application.
(12) 23 September 2010. The Owens, in relation to unit 92, and Mr Malem and Mr Biddlecombe, in relation to unit 91, plead guilty and are fined. None of the defendants were legally represented nor had taken legal advice prior to the hearing.
(13) 5 January 2011. NFDC wrote to the Owens advising them that it was considering further enforcement action in relation to the residential use of unit 92.
(14) 15 March 2011. NFDC, having been informed by a member of the public that unit 93 was in residential use and having then undertaken a site inspection, wrote to the Greenshields and informed them that their residential use of unit 93 was in breach of the EN.
(15) 19 April 2011. Mr and Mrs Greenshields were separately interviewed under caution by an officer of NFDC. They informed the officer that they were unaware of the existence of the EN and that they had been informed when buying the property by the co-owners that they were permitted to use unit 93 for up to 12 weeks each year for rest purposes.
(16) 21 April 2011. The decision letter of the inspector appointed to determine Mrs Owen's appeal against NFDC's refusal of her planning application was issued. The decision dismissed her appeal.
(17) 18 May 2011. An officer of NFDC carried out a site inspection and found that units 91, 92 and 93 were being used for residential purposes.
(18) 13 July 2011. NFDC wrote to the Owens and informed them that they remained in breach of the EN.
(19) 6 February 2012. NFDC sent a letter before action to Mr Malem informing him that injunction proceedings would be started if he did not stop using unit 91 for residential purposes. Mr Malem replied on 17 February 2012 informing NFDC that he was occupying unit 91 conditional upon his duties as a security officer of Merryfield Park.
(20) 7 February 2012. An officer of NFDC undertook a site visit. Mrs Owen informed the officer that the Owens were continuing to use unit 92 for residential purposes.
(21) 15 February 2012. NFDC sent a letter before action to the Greenshields informing them that injunction proceedings would be taken if they did not stop using unit 93 for residential purposes.
(22) 1 March 2012. During a site visit to unit 92, an officer of NFDC was told by the Owens that they were at that time staying at unit 92 for residential purposes.
(23) June 2012. Proceedings issued against each defendant.
- In addition to these formal steps, NFDC wrote to each defendant on a number of occasions explaining in detail why it contended that they were using their respective unit for residential use in breach of planning control, why they should stop that use and remove any personal belongings or other feature of residential use and of the action it proposed to take if the defendants did not leave their respective units voluntarily. This correspondence was not answered in any detail by any of the defendants.
- The Owens. In 2005, Mrs Owen was 53 and Mr Owen is more than 20 years older than her. Mr and Mrs Owen are the joint registered proprietors and freehold owners of unit 92. Since 1988, Mrs Owen was working domestically and living in tied accommodation with her husband. In 2005, she was working in Blandford and they were living in tied accommodation nearby.
- Mr Biddlecombe had rented a unit for storage purposes on the site for many years and this unit now has a LUC authorising his use of it because it had continued for so long that it could no longer be enforced against. He bought unit 92 from the co-owners on 31 March 2005 in an arm's length transaction and undertook conversion work on it. The Owens bought unit 92 from Mr Biddlecombe in 24 August 2006 for £58,000 so as to provide Mr Owen with a base to run his charity which enabled older and retired people to sail tall-masted sailing ships and they have been its freehold owners ever since.
- Mrs Owen arranged for a property search before acquiring the property which did not reveal the EN. This is not surprising since, as was conceded by NFDC at the hearing, it was not registered against the title to unit 92 so it would not have shown up on a search by a prospective purchaser of the unit. Moreover, there is no evidence that Mr Biddlecombe was aware of the existence or suggested effect of this notice.
- Soon after unit 92 had been purchased for use in connection with Mr Owen's tall-masted sailing ship charity, Mrs Owen's mother became very ill and incapacitated with multiple sclerosis. She was living in North London but was no longer capable of looking after herself. Mrs Owen arranged for her to move into a nursing home in Hordle where she became totally reliant on Mrs Owen. The only way that the Owens could afford to live near Mrs Owen's mother was for Mrs Owen to give up working and for her and her husband to move into unit 92 in March 2007. There was no evidence as to when the unit was converted into a residential unit but it is likely that the conversion work was undertaken by Mr Biddlecombe in the period that he owned the unit between March 2005 and August 2006 and probably at the time or just before or after he converted unit 91 and, possibly, unit 93 as well although the inspection carried out of the site by NFDC in August 2008 identified units 91 and 92 as having been converted but did not identify unit 93 as having been converted..
- NFDC only first became aware that unit 92 had been converted to residential use on 7 August 2008 when undertaking a site inspection of Merryfield Park. An enforcement officer carried out an interview under caution of Mrs Own on 7 October 2008 during which she informed the officer that she knew that there was no permission to reside there but she had no knowledge of an enforcement notice. On 22 July 2009, Mrs Own submitted an application for a LDC relating to the residential use of unit 92 but this was not registered since insufficient information had been supplied with it and none was forthcoming after NFDC had written to ask for it.
- In 2010, Mr Owen, who was then aged 79, had an awkward fall which has left him disabled and Mrs Owen is his full-time carer. On 21 April 2010, Mrs Owen submitted a retrospective application for planning permission for the change of use of unit 92 to residential use and on 22 April 2010, NFDC applied for a summons to be issued against the Owens based on an offence arising from their failure to comply with the EN. Mrs Owen's application for permission for the change of use of unit 92 was refused by NFDC on 16 June 2010. The trial of the Owens took place on 23 September 2010 and the Owens pleaded guilty and each was fined £750 with a costs order of £125. Mrs Owen's subsequent appeal to an inspector was dismissed on 21 April 2011. NFDC initiated these injunction proceedings on 3 March 2011 in passing the relevant files to its Legal Services Department for that purpose.
- Mrs Owen's mother died in 2011 and soon after her death, Mrs Owen's step-son purchased a caravan for the Owens' use on a permanent site in Cornwall as Mr Owen was suffering from a stress-related illness. The Owens live there for much of the time but they are required to vacate the caravan for at least 28 days during the year. They contend that they reside for short periods of time on an intermittent basis for 28 days or so per year at unit 92 and that they are using it as a rest place on an occasional basis so as not to amount to change of use. They cannot afford to buy anywhere else and this pattern of life is the only way that Mrs Owen can act as her husband's carer. NFDC contends that it cannot lawfully find or provide an affordable home for the Owens who respond by pointing out that their present arrangement costs the state nothing whereas any other solution would be both a serious interference with their article 8 rights, very expensive for the state and wholly unsuitable for their needs.
- At the hearing, the court was assisted by a very detailed witness statement and submissions document prepared by Mrs Owen with supporting documentation. This was not a formal witness statement and Mrs Owen had not had an opportunity to serve a defence for herself and her husband so NFDC had only had an opportunity to respond orally through counsel in reply submissions at the hearing. The document provided, however, an invaluable insight into the Owens' defences to the injunction applications.
- The Greenshields. Mr Greenshields is now aged 58 and Mrs Greenshields is 55. Mrs Greenshields is the freehold owner of unit 93. They first had contact with Merryfield Park in February 2011. Before then, they had run a pub in the area but were evicted from it when their management agreement was terminated by Enterprise Inns. This left the Greenshields homeless with all their possessions and with limited resources. They had become friends of Mr Peter Hilton who is a director of the corporate co-owner, Peter Hilton (Wickham) Ltd and who was a customer of the pub they had run and a close friend. The Greenshields frequently visit their relatives in Spain and they stated that these visits total several months in each year. However, on being required to vacate their accommodation in the pub, they had no home or base in England. Mr Hilton informed them that they could use unit 93 for a twelve weeks for what he described as a rest. Mr Hilton made no reference to the EN but he did make it clear that the unit could only be used on rest camp basis. The Greenshields agreed and the co-owners granted them a tenancy agreement dated 1 February 2011. This granted the Greenshields a tenancy at will at a rent of £4,800 and granted them "the Permitted Use" which was defined in clause 1.5 as:
"…access to Merryfield Park (former RAF Sopley Camp) through the main gate (marked orange) and use of building 93 (marked green)".
- The information provided about unit 93 was limited but it would appear that unit 93 had previously, at some undefined time in the past, been converted or adapted for use for residential purposes. It is possible, given the unit's proximity to units 91 and 92 which were converted for use as residential units in about 2005, that unit 93 was converted for such use at the same time. However, before the Greenshields moved in, they stayed with their daughter who lives in Otterbourne for about two weeks whilst Mr Greenshields repainted the interior and they sorted out their furniture. They took occupation in about mid-February 2011. This preliminary activity was noticed by a local resident from outside Merryfied Park who informed NFDC on 7 March 2011 that unit 93 had been converted into a dwelling. The date of the conversion was not recorded or possibly given and it is possible that the local resident had mistakenly assumed that the moving in activities of the Greenshields in the recent past were conversion work as opposed to redecoration of a unit that had previously, and possibly considerably previously, been converted. On receiving this information, NFDC's enforcement team moved rapidly. An inspection visit was arranged and this took place on the same day and the complaint was registered on 10 March 2011. That led to the Greenshields being asked to attend NFDC's offices to be separately interviewed under caution and these interviews took place on 19 April 2011.
- The Geenshields, in their separate interviews, both made it clear that they were unaware of the EN and had never seen a copy of it and it had not been mentioned to them. Each stated that they had an agreement with the co-owners to use unit 92 for rest purposes and that it was their intention to use it intermittently for such purposes whilst spending the intervening time in Spain. They were, however, on the housing list in Winchester. The enforcement officers also interviewed Mr Hilton in July 2011 and received further information from Mrs Hounsell soon afterwards. This further information was to the effect that the tenancy agreement was regarded as being temporary and that it was intended to be used in conformity with the planning use restrictions governing Merryfield Park to the effect that it could be used for up to 12 weeks in any year period as rest or holiday accommodation, the overall period of 12 weeks being taken in a number of shorter periods.
- Mrs Greenshields bought the unit from the co-owners for £110,000 by a transfer registered on 24 August 2011. It is not clear when contracts were exchanged for this purchase and Mr Hilton informed the enforcement officers who interviewed him on 26 July 2011 that Mrs Greenshields was already the owner so that, on the basis of the evidence before the court, it would seem that the contractual date of sale must have been at some date between 19 April and 26 July 2011.
- The Greenshields contend that they continue to use unit 93 for rest purposes and that that use is in the nature of holiday use for short visits. They spend much of their time in Spain and continue to wait to be allotted a home for them to rent since they are on NFDC's housing list and are registered for an affordable home or one to rent from NFDC. They have two dogs that they have had for many years and if they were evicted from their home, owned as it is by Mrs Greenshields, they would be homeless and would need to be re-housed. All that has been offered them by NFDC is temporary bed and breakfast accommodation from which their dogs would be excluded.
- Mr Malem. Mr Malem has occupied unit 91 since December 2005 when he was permitted to use it under a tenancy agreement for a tenancy at will but which Mr Malem and Mrs Hounsell considered to be a service occupancy. Mr Malem provided night watchman services patrolling and looking after the site in return for a greatly reduced weekly payment of rent or licence fee. Mr Biddlecombe had introduced Mr Malem to the co-owners and he undertook the conversion work needed to make unit 91 habitable. He acquired the freehold from the co-owners in July 2006 for a nominal sum and was permitted to keep Mr Malem's weekly rental payment as an income stream so as to provide payment for his conversion work. In 2012, Mr Biddlecombe transferred ownership of the unit back to the co-owners and a formal service agreement was entered into between Mr Malem and the co-owners dated 1 August 2012 and it is by virtue of that agreement that Mr Malem now occupies unit 91.
- The reason why Mr Malem had been permitted to occupy unit 91 in 2005 was because he was engaged by Merryfield Park as a night watchman. He is now aged 52 but had been unfit for work for many years due to his adjustment disorder with recurring depressive illness. He has been friendly for some years with Mr Biddlecombe who knew of his difficulties and of Merryfield Park's wish to replace its previous second warden whose duties were largely to patrol the park during night hours. Merryfield Park has been permitted to place up to two wardens in units in the Park complex despite the bar on residential occupancy so long as the occupancy was tied and linked to their employment as wardens. The basis of this acceptance was that such occupancy was an ancillary use to the use of the Park as a camp. Mr Malem was introduced to Mrs Hounsell and she accepted him as a tenant for unit 91 once it had been converted into residential accommodation. The informal arrangement was that Mr Malem would be permitted to occupy the unit for a rent of £800 per month which would be reduced to £600 in return for his patrolling the Park several times a night to chase away trespassers. Mr Biddlecombe undertook extensive conversion work on unit 91 in 2005 at the time he was also converting unit 92 which he had purchased in March 2005. Mr Malem moved into unit 91 in December 2005.
- NFDC only first became aware that unit 91 had been converted to residential use during a site inspection in June 2008. The unit was inspected on 8 October 2008 and Mr Malem confirmed in a written response following that inspection that he was a tenant of that unit. He also responded on 16 July 2008 to a Planning Contravention Notice that he was a tenant at the property. He and Mr Biddlecombe, his landlord, were summonsed for using and permitting the use of unit 91 for residential purposes in breach of planning control and, having pleaded guilty on 23 September 2010, he was fined £250. The conviction arose from his stating in evidence that he was a tenant of unit 91, that his duties as a night watchman were not those undertaken as a proper job and that unit, not being in the same ownership as Merryfield Park, could not be used by Merryfield Park in conjunction with their lawful activities on site since it was a separate planning unit.
- Following that conviction, Mr Biddlecombe transferred his freehold interest in unit 91 back to the co-owners of Merryfield Park and they then granted Mr Malem a service occupancy agreement of unit 91 dated 1 August 2012 permitting him to occupy it as a caretaker, warden and maintenance man. The agreement stated that Mr Biddlecombe would pay a notional rent of £400 per week for a term which was defined as being during his continued employment as a caretaker. This agreement was signed after the claim for an injunction had been issued.
D. The relevant planning history of the site
- Crown ownership. Until acquired by the co-owners in 1989, the site was in Crown ownership and was in consequence not subject to planning control. It was established in Circular 18/84 that Crown land which had a lawful use whilst in Crown ownership retained its use and did not revert to its pre-Crown use on being sold. Thus, any lawful use of the site by the Crown could lawfully be continued by the co-owners on acquiring it. NFDC has, since 1989, sought to exercise its planning powers to prevent any intensification or change of use on the site and to turn as much of the site as possible into the open Green Belt use that is appropriate for its Green Belt designation in 1958 but which it has never yet enjoyed.
- Original use. The site was requisitioned during the Second World War and the RAF build a camp comprising over 150 units in about 1952 and thereby established RAF Sopley Camp as a base for airmen stationed at RAF facilities in the vicinity.
- Green belt – 1958. The site became subject to Green Belt policies in 1958.
- Use pre-1986. The RAF abandoned the permanent camp use of RAF Sopley Camp in 1974. It was then used intermittently by the RAF until 1979 as a self-contained unit subject to service discipline and the camp was used as a whole. Residential use was confined to the employment of service personnel who were present to service the camp and RAF personnel using it as a camp or barracks for service purposes.
- In 1979, whilst still owned by the Crown, the use of the site was transferred to the Home Office for use as a Vietnamese Refugees Resettlement Centre and that was its sole use between 1979 and 1982 when that use was also discontinued. Between 1982 and 1989 the camp was used "infrequently as a training site or rest camp by branches of the services including as a summer camp for the Household cavalry". These various uses were described as being ad hoc and occasional and were not part of pattern of regular or substantial use.
- Planning inquiry – 1986. The Ministry of Defence applied for planning permission for the residential development of the site which was refused and was subject to an appeal to the Minister. The inspector in his inquiry report recommended that the Minister should dismiss the appeal because the site had been subject to Green Belt policies for a number of years and NFDC proposed to include it within the permanent Green Belt that was to be confirmed in the next local plan.
- Section 64 appeal – 1992. Following their acquisition of the site, the co-owners applied to NFDC for a certificate that they did not require planning permission to use the site for short-term residential accommodation for homeless families since that did not amount to a change of use. NFDC refused this application and, on the co-owners' appeal, the Minister adopted his inspector's recommendation and determined that planning permission was required since the proposal would amount to a change of use.
- Both NFDC's and the Minister's respective decisions had to be based on the site's use at the date of the appeal or, if there was no current use at that time, the most recent use prior to the abandonment of any use of the site. The inspector decided that there was very little evidence of the last or current use save that the use to resettle refugees had been abandoned in 1982. His decision contained this extract:
"8. … After 1983 the camp was used occasionally as a training site or rest camp by various branches of the services, including as a summer camp for the Household Cavalry. Evidence to the 1986 appeal inquiry confirmed that it was the intention of the MoD to sell the camp on the open market to the highest bidder. …
10. … Thereafter, with reversion of responsibility for the site to the MoD, the land was used on an occasional basis as a military training site and rest camp, and, in view of the above findings, it is concluded that this use must be regarded as the last use of the land for these purposes. …
11. … While there is limited evidence available about the nature of the use of the camp by the MoD as a military rest and training facility, the view is taken that such a use will have little in common with the proposed use to accommodate homeless persons and it is concluded as a matter of fact and degree to have been materially different to the proposed use to accommodate homeless persons and it is materially different to the proposed use."
- In its context in this report, therefore, it is clear that the "and" in the description of the current or most recent use was being used disjunctively and not conjunctively so that the use being described was as either a training use or a rest use or both uses at the same time. NFDC's current view is that the LDC use description was conjunctive and was confined to permitted uses that combined a military training site with the use of the site as a rest camp. This suggested combined use is improbable since it is in practice very difficult to devise a specific use that combines both these functions and no such combined use was identified by the inspector deciding the 1992 appeal.
- The inspector's decision therefore, does little more than conclude that the proposed use as a hostel for homeless people was a changed use from the permitted uses transferred to the co-owners without being able to provide any clear definition of what those uses were. No definitive conclusions may therefore be drawn from this decision as to the various permitted uses that could take place on the site following its acquisition from the Crown in 1989 or as to the permitted intensity of use, location within the site or frequency of use of the uses that were permitted. A further point of note is that whereas the inspector had concluded that the camp was used "occasionally", the subsequent LDC changed this limitation to being the use of site "on an occasional basis" – in other words from an intermittent use of the site to the use of the site with users which were undertaken on an occasional basis.
- Co-owners purchase the site – 1989. The site was bought by private tender from the Crown having been marketed by the PSA.
- 1989 – 1995. Seven planning applications were submitted by the co-owners for short term accommodation for some form of residential use on the site; use as a caravan park and the use of a compound for industrial or commercial purposes. All these applications were refused.
- Refusal of a Certificate of Lawfulness of Proposed Use or Development (CLPUD) – 1994. The co-owners were obviously concerned to ascertain what they were permitted to use the site and its constituent parts for having tried unsuccessfully to obtain planning permission on seven occasions since 1989 for some form of residential accommodation. They applied to NFDC for a CLPUD which required them to identify the proposed use. This was:
"The use for the purpose of educational activity courses within the development."
- NFDC refused to issue the CLPUD that the co-owners had applied for. The decision was not put in evidence but the inspector deciding the EN appeal clearly considered that NFDC's view of what was lawfully permitted in 1994 was unduly confined. In particular, by 1994, the permitted uses were no longer military uses and that the lawful uses were as a training site and rest camp and that training included education that was physical rather than mental in form.
- EN appeal – 1997. In a notice dated 27 September 1995, NFDC issued the EN against the co-owners alleging three unauthorised and different changes of the use of land including the use of two units on the land as two residential dwellings. These two units were identified by number, being units 15 and 30, and their location was clearly marked in blue on the plan attached to the EN. The other two alleged changes of use were the use of the land as a place of public assembly for such leisure activities as dances and shows and for day and residential sporting and other activity courses. In a decision dated 13 March 2007, an inspector dismissed the co-owners' appeal in relation to the residential use of the two identified units and the public assembly use but allowed it relation to "day and residential sporting, training, educational and activity courses."
- It is accepted by all parties that residential use of any of the units on the site is unlawful save for any such unlawful use as is now immune as result of at least four years' uninterrupted user. The particular significance of this appeal decision is that the EN in its revised and confirmed state has been relied on ever since by NFDC as being a notice which prohibited the use of any building on the whole site from being used as a residential dwelling so that, although it was particularly targeted on two units within the site, it in fact related to the entire site and each and every one of the 100 or more units that remained within the planning unit constituting the entire site.
- If the EN covered every unit on the site, it would follow that any initiation or resumption of residential user in any unit on the site would amount to a contravention of the EN without the need for NFDC to serve a fresh enforcement notice however much later that use started or resumed since, in such a case, the four-year limitation or immunity period does not apply. If, on the other hand, the 1995 notice only covered and referred to units 15 and 30, it cannot now be relied on as evidence of a breach of planning control so far as units 91 – 93 are concerned. In those circumstances, NFDC would need first to serve a fresh enforcement notice covering those three units, and no enforcement notice of that kind has been served since 1997, or it would need to prove the defendants' breaches of planning control by some other means. If the 1995 notice is inapplicable, any residential user in units 91 – 93 that started since 1995 and was not enforced against within a period of at least four years from the start of unlawful residential use could no longer be enforced against due to the statutory immunity provided by section 171B(2) of the TCPA.
- It is therefore of vital importance to NFDC to establish that the EN, when properly interpreted, was referring to and requiring the discontinuance of residential use in all the units on the site or whether it was only requiring the discontinuance of residential use of units 15 and 30 then being occupied. If the latter is the correct construction of the EN, NFDC cannot rely on that notice in these applications and must prove the defendants' breaches in some other way. Moreover, since no subsequent enforcement notice has ever been served in relation to units 91 – 93, if there has now been at least uninterrupted but unlawful residential user for at least 4 years, that change of use may no longer be enforced against. For these purposes, enforcement action which stops time running is confined to an enforcement notice and does not include prosecution in the Magistrates' court, a previous injunction or the refusal of planning permission for a change of use to residential use.
- LDC – 27 May 2003. This certifies as a lawful use the use of the whole park for war games as part of a corporate/team building activity or programme (but not such provision to the general public for recreational purposes).
- Co-owners' LDC application – 2004. LDC certificate issued dated 29 March 2004. This included unit 5. It was granted on 6 April 2004 and revoked and superseded by the 2005 LDC certificate.
- LDC – 9 March 2005. NFDC issued a LDC covering the whole site on the application of the co-owners. The use it certified was :
"Use of land as a training and rest camp on an occasional basis including day and residential training, educational and activity courses and ancillary uses."
The use described by the certificate was different to the use description drafted by the co-owners that was set out in their application when applying for the certificate. Their description was:
"Generally as:- day and residential training, educational and activity courses, ancillary dances, shows, exhibitions and displays."
NFDC's witnesses informed the inspector at the 2011 enforcement appeal that the source of the wording it used when drafting the LDC was the wording of the 1997 appeal decision. If that is so, the 1997 wording was changed significantly since the inspector's 1997 wording described the use that he was permitting as being one involving "training courses, activity courses and residential camps". These are clearly separate or disjunctive uses. In contrast, the wording added by NFDC, in using the words "training and rest camp", described a composite use of training as part of a rest camp use. Moreover, the described use did not include as a permitted use the use of the site as a training site and it incorporated the requirement that the permitted use had to be "on an occasional basis" without defining what that entailed on a site with many different units catering for many different activities that operated on very different timetables.
- It follows that the LDC wording gives rise to great difficulties of interpretation and is of doubtful validity and enforceability.
- LDC certificate for unit 5 – 19 April 2005. This covered the lawful use of this unit for storage purposes acquired by long-user and consequent immunity from enforcement action.
- Policy SC-1 of NFDC's Local Plan – August 2005. This provided that:
"E11.19. Development involving the re-use of land and existing buildings at Sopley Camp will not be permitted.
"E11.20. The Secretary of State has supported the view that restoration of the site to agriculture and forestry is economic and viable, and has given the view that even if the site became derelict it would not substantially detract from the appearance of the area. The local planning authority will encourage the full and proper restoration of the site to forestry and agriculture.
E11.21. The lawful use of the site has been established as a "training site and rest camp on an occasional basis". The existing buildings are not of a form, design or general appearance which justifies their retention through re-use."
- Service of an enforcement notice covering the entire park – 12 January 2007. The EN was served on the co-owners and alleged changes of use to residential, B1, B2, B8 and D2 uses and open storage. An appeal was lodged and an inquiry was opened on 6 November 2007. It was adjourned at the request of the parties to address certain legal points and the EN was withdrawn.
- Section 179 prosecution of the Owens – 5 April 2010. The Owens were subsequently summonsed under section 179 of the TCPA for failing to comply with the EN. They pleaded guilty to this summons in September 2010 and were fined £750 and ordered to pay a further sum in costs. They were unrepresented and had not taken legal advice prior to entering their pleas.
- Section 179 prosecution of Mr Malem and Mr Biddlecombe – September 2010. Mr Malem and Mr Biddlecombe were summonsed under section 179 of the TCPA for failing to comply with the EN. They pleaded guilty to this summons in September 2010 and Mr Malem was fined £250 and Mr Biddlecombe was fined £1,500 and ordered to pay costs. The basis of the prosecution was that Mr Malem had failed to establish that his residency of unit 91 was as an adjunct to his employment as a caretaker of the site so that that resident use was ancillary to the lawful planning use being made of the site. The magistrate was not satisfied that Mr Malem was employed by Merryfield Park or that unit 91 remained within the same planning unit as Merryfield Park.
- NFDC issues "second bite" enforcement notices – 12 November 2010. These notices covered the units subject to the "first bite" notice and some additional notices.
- NFDC Public Consultation Document for the Local Development Framework – January 2011. NFDC issued its draft public consultation document for Sites Development Management as part of its draft Development Plan. One of the sites it addressed was Merryfield Park. This draft was the first document to contain a draft of the emerging SOP1 policy.
- Mrs Owen's appeal against NFDC's refusal of her planning application – 29 March 2011. Mrs Owen applied to NFDC for retrospective permission to change the use of unit 92 from its existing use to residential use. The inspector concluded that the change of use would be inappropriate development in the Green Belt, would not provide a contribution to the supply of affordable housing and no very special circumstances existed to justify the development. The inspector gave very little weight to the draft policy SOP1given that it had only very recently been produced as a draft in the Public Consultation Document.
- 2011 enforcement notices appeal – 21 November 2011. The co-owners appealed against the "second bite" enforcement notices that NFDC had served on Merryfield Park in September 2010. 19 of these notices related to specific breaches of the site's established use, 13 of which related to the use of individual units for storage purposes, 5 to the undertaking of different unauthorised site-wide activities such as band rehearsals and 1 to the cessation of all the activities being enforced against in the individual notices across the whole planning unit. These enforcement notices excluded any unit or use covered by a LDC. It also excluded units 91 - 93 because NFDC considered the use of those units for residential purposes were covered by the EN and were, in any event, separate planning units that were to be made the subject of injunction proceedings.
- The inspector said this about the general notice:
"… I will substitute a revised plan to go with this notice. … I will correct the EN to relate only to the use of Units [15 individual units] where I have found there to be a breach of planning control and where there was no success on legal grounds."
That reads as if the general notice was prohibiting the individual breaches on a unit-specific basis. This is another reason for interpreting the EN in the same way so as to limit its scope to the particular units it specifically referred to.
- The inspector confirmed the enforcement notices. He refused to grant planning permission for any of the various unlawful uses that were being enforced against on the grounds that the development that had occurred was inappropriate Green Belt development that conflicted with the 2005 SC-1 policy and for which there were no very special reasons to permit the development. The inspector took account of, but gave little weight to, draft policy SOP1 or the draft National Planning Policy Framework ("NPPF").
- NFDC Proposed Submission Document – January 2012. The revised proposed SOP1 in the draft Sites and Development Management Development Plan document was published in January 2012. This document included the following statement about the proposed wording for SOP1:
"5.16 … Of the original buildings, 91 remain on site and have been used for various purposes. When it was still owned by the Government, the site was used by the Household Cavalry as holiday accommodation and to temporarily accommodate Vietnamese 'boat people'. The site has been privately owned for some time. It lies within the Green Belt. Its 'lawful use' has been established to be a 'training or rest camp on an occasional basis including day and residual training, education and activity courses and ancillary uses.'
5.17 The Council considers that in order to resolve the future of this site and achieve restoration of Green Belt land, a limited amount of development may be acceptable in accordance with Policy SOP1
A limited amount of development may be permitted within the framework of a comprehensive site restoration plan to remove existing buildings, structures and hard-standings. The aim is to return most of the Sopley Camp site to agriculture and forestry, and significantly improve the environmental appearance of the site. Overall, the resulting development should have a reduced impact on the openness of the Green Belt compared with the former military camp buildings and structures.
The total amount of development will be limited to that needed to produce a financially viable scheme that achieves these aims, demonstrated to the satisfaction of the Local Planning Authority. In addition to agricultural and forestry uses, uses that may be considered acceptable as part of a restoration plan include business uses, training/education uses and a limited amount of residential accommodation (including affordable housing).
5.18 Proposals for the site will only be considered in the context of a comprehensive Development Brief and Site Restoration Plan for the whole site, agreed with the Local Planning Authority. Site owners will be encouraged to involve the local community in the preparation of the Brief. It is considered that the eastern part of the site, closest to Bransgore, is likely to be the most appropriate part of the site to accommodate built development, in order to protect the openness of the Green Belt. Development proposals should ensure that the rural character of Derritt Lane is maintained."
- NPPF – March 2012. The NPPF set out the Government's requirements for the planning system. It was applicable as soon as it was published. Its strategic aim is the creation of sustainable development. There is a section devoted to Green Belt land. Although the general policies already provided for by the previous Green Belt policy guidance are retained, there are provisions which appear to be particularly applicable to the site (with the apparently directly applicable policies highlighted in bold):
"89. A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:
? buildings for agriculture and forestry;
? the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building;
? the replacement of a building, provided the new building is in the same use and not materially larger than the one it replaces;
? limited infilling in villages, and limited affordable housing for local community needs under policies set out in the Local Plan; or
? limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.
90. Certain other forms of development are also not inappropriate in Green Belt provided they preserve the openness of the Green Belt and do not conflict with the purposes of including land in Green Belt. These are:
? the re-use of buildings provided that the buildings are of permanent and substantial construction; and
? development brought forward under a Community Right to Build Order."
- Timetable for adoption of NFDC's Sites and Development Management Development Plan – 2012 – 2013. The timetable for the adoption of NFDC's SDMDP is as follows:
Examination of the Plan; July 2012 – April 2013
Hearing sessions of the Examination - February 2013
Receipt of Inspector's report - Late Spring 2013
Adoption and publication of document and revised proposals map - September 2013
- Discussion of the effect of SOP1 and the NPPF. Mr David Groom, NFDC's Development Control Manager, stated in his witness statement that NPPF will not affect Merryfield Park or the content and application of SOP1 since the re-use of buildings is only stated in the NPPF to be appropriate when the openness of the Green Belt is preserved and there is no conflict with the purpose of preventing encroachment and encouraging urban development.
- However, Merryfield Park has been in existence since the early 1950s and only first came within Green Belt policies in 1958. It is a brown field site and its derelict buildings sited on the outskirts of Bransgrore are well within the policy of infilling and re-use, particularly for affordable housing, provided for in the NPPF. It follows that several of the NPPF Green Belt policies would appear to be relevant to the finalisation of the content of policy SOP1 which had not taken account of the NPPF Green Belt policies at the stage when it was issued in a revised submission draft in January 2012. By way of example of the possible effect of the NPPF, its relevant provisions appear to provide for the possibility of limited residential development of the eastern end of the site on which the units owned by the Owens and the Greenshields are situated either by refurbishment or by demolition and rebuilding. Moreover, if the NPPF Green Belt policies are applied, a more comprehensive development of the whole Merryfield site, which is in effect a brown field site, would be undertaken than was provided for by the submission draft of SOP1. These are considerations which will, if necessary, be resolved in the final stages of consultation, consideration, inquiry and adoption of NFDC's SDMDP during 2013 and in future planning applications and planning appeal decisions concerned with the site.
- It is also relevant that the Owens and the Greenshields, as owners of a small part of the site, will be included in the development of both the comprehensive development brief and the site restoration plan for the whole site envisaged by SOP1, particularly since that development work will need to be undertaken within the framework of the NPPF Green Belt policy guidance.
E. Issues discussed
- These facts give rise to a surprisingly large list of issues. These are set out in the appendix to this judgment. I will discuss each issue in turn.
(1) EN – Issues 1 – 3
- Introduction – The legislation relating to enforcement notices. The EN had to comply with the relevant provisions of the TCPA and the relevant statutory instrument which may be summarised as follows:
(1) NFDC, as a local planning authority, was entitled to issue an enforcement notice where it appeared to them that there had been a breach of planning control. Breach of planning control occurred when development was carried out without planning permission (section 171A(1)(a)).
(2) In the context of these claims, development meant the making of any material change in the use of any buildings or other land (section 55). The EN was issued under section 171A(1)(a) and was, in consequence requiring the discontinuation of the material change of use of land to residential use (section 173(4)(a)).
(3) The EN had to identify what had to be done in order to identify the purposes that it was able to achieve:
"(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.
(4) Those purposes are—
(a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or
(b) remedying any injury to amenity which has been caused by the breach. (section 173(3) & (4))"
(4) A copy of the EN had to be served on the owner and on the occupier of the land to which it related and on any other person having an interest in the land, being an interest which, in the opinion of the authority, was materially affected by the EN (section 172).
(5) The EN was required to state the matters which appeared to the local planning authority to constitute the particular breach of planning control and it should enable the person on whom it was served to know what those matters were and should specify the steps required in order to discontinue the unlawful use in question (section 173).
(6) Where, at any time after the end of the period for compliance with the EN, any step required by the EN to be taken had not been taken or any activity required by the EN to cease was being carried on, the person who was then the owner of the land would be in breach of the EN (section 179).
(7) Any provision of an enforcement notice requiring a use of land to be discontinued should operate as a requirement that it should be discontinued permanently so that:
"181 Enforcement notice to have effect against subsequent development
"(1) Compliance with an enforcement notice, whether in respect of—
(a) the completion, or alteration of any buildings or works;
(b) the discontinuance of any use of land; or
any other requirements contained in the EN,
shall not discharge the EN.
(2) Without prejudice to subsection (1), any provision of an enforcement notice requiring a use of land to be discontinued shall operate as a requirement that it shall be discontinued permanently, to the extent that it is in contravention of Part III; and accordingly the resumption of that use at any time after it has been discontinued in compliance with the enforcement notice shall to that extent be in contravention of the enforcement notice. (emphasis added)"
(8) A failure to comply with the terms of the EN is an offence:
"179 Offence where enforcement notice not complied with
(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the EN to be taken has not been taken or any activity required by the EN to cease is being carried on, the person who is then the owner of the land is in breach of the EN.
(2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.
(3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the EN.
(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the EN to cease or cause or permit such an activity to be carried on.
(5) A person who, at any time after the end of the period for compliance with the EN, contravenes subsection (4) shall be guilty of an offence.
(6) An offence under subsection (2) or (5) may be charged by reference to any day or longer period of time and a person may be convicted of a second or subsequent offence under the subsection in question by reference to any period of time following the preceding conviction for such an offence.
(a) a person charged with an offence under this section has not been served with a copy of the enforcement notice; and
(b) the EN is not contained in the appropriate register kept under section 188,
it shall be a defence for him to show that he was not aware of the existence of the EN.
(8) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £20,000; and
(b) on conviction on indictment, to a fine."
(9) In a case involving an unlawful change of use involving the change of use of a building to use as a single dwelling house, no enforcement action might be taken after the end of the period of four years beginning with the date of the breach (section 171B(2)):
"171B Time limits
(3) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwellinghouse, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
(4) The preceding subsections do not prevent—
(a) the service of a breach of condition notice in respect of any breach of planning control if an enforcement notice in respect of the breach is in effect; or
(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach."
"171A. Expressions used in connection with enforcement
(2) For the purposes of this Act—
(a) the issue of an enforcement notice (defined in section 172); or
(b) the service of a breach of condition notice (defined in section 187A),
constitutes taking enforcement action."
- The EN as confirmed by the 1997 inspector's appeal decision. Although NFDC has consistently maintained its contention that the EN was site-wide in its effect, that was clearly not the view of the inspector. At best, the wording is ambiguous and the inspector's view that the EN was enforcing against units 15 and 30 is more consistent with the wording of the EN, the wording of the legislation and the practice of local planning authorities as explained in relevant decided authorities. In any event, the EN must be interpreted and applied in the corrected form in which it was confirmed by the inspector and in the light of his reasoned decision explaining the basis on which he was confirming it.
- The residential use being enforced against was stated to be that of two identified buildings on the site and the breach of planning control was worded in these terms:
"(1) THIS IS A FORMAL NOTICE which is issued by [NFDC] because it appears to them that there has been a breach of planning control under section 171A(1)(a) of the [TCPA] They consider that it is expedient to use this notice having regard to the provisions of the development plan and to other material planning considerations.
(4) THE LAND AFFECTED
The land at Sopley Camp, Derrett Lane, Sopley, Bransgrore in Hampshire shown edged in red on the attached plan.
(5) THE BREACH OF PLANNING CONTROL ALLEGED
Without planning permission, changing the use of the land to a mixed use including:-
(6) The use of buildings on the land as two residential dwellings (in the approximate position coloured navy blue on the plan);
(ii) A place of public assembly for leisure activities including the provision of dances, shows, exhibitions, displays [and other events];
(iii) Day and residential sporting, training, educational and activity courses.
(7) REASONS FOR ISSUING THIS NOTICE
It appears to [NFDC] that the above breach of planning control has occurred within the last four years in respect of the breach identified at paragraph 3(i) above and ten years in respect of those at paragraphs 3(ii) and 3(iii) above.
(8) The use of the land for the uses identified involves the concentration of visitors to the land together with a significant increase in the level and intensity of activities on the land and traffic on the surrounding road. Such uses lead to noise and disturbance to residents of the area and detract from the amenities of this rural area.
(ii) The site lies within the Green Belt and is adjacent to the proposed extension to the New Forest Heritage Area where the policies of the Development Plan seek to protect the character and appearance of the Countryside and prevent inappropriate development. The use of the site for the purpose specified is contrary to the aims and policies of the Development Plan;
(iii) Residential use of the land is contrary to the policies of the Development Plan and has an unacceptable impact on the character and appearance of the countryside.
The [NFDC] do not consider that planning permission should be given, because planning considerations do not overcome these problems.
(9) WHAT YOU ARE REQUIRED TO DO
To cease the use of the land:-
(i) As residential dwellings;
(ii) As a place of public assembly for leisure activities including dances, shows, exhibitions and displays; and
(iii) For day and residential sporting, training, educational and activity courses."
- The EN had attached to it a site plan showing the boundaries of Merryfield Park edged in red and an indication of where each unit was located with an approximate representation of its shape. The shapes of the two units, 15 and 30, shown on the plan were coloured up in blue dots.
- The inspector reached these conclusions in his decision:
"51. Although there is only one Enforcement Notice, it encompasses 3 separate allegations of change of use. For clarity, in my conclusions, I have dealt with each allegation as if it were a separate Notice and I have similarly dealt with the Formal Decision under three separate headings. …"
In his decision, the inspector considered each of the two dwellings separately. By way of example, he dealt with unit 30 as follows:
"59. In summary therefore, the residential occupation of Unit 30 until October 1992 was ancillary to the functioning of the former RAF camp and it remained subsidiary to the prime purpose of the planning unit as a whole. There had been no change of use to a use as a single dwelling house. There was, however, a material change of use in November 1992 when Mr Lowe moved in and began the separate use of the building as a single dwelling house with its own planning unit.
60. The special protection for residential occupiers grants immunity from enforcement action upon the expiry of four years from the breach rather than ten years. For unit 30 to be immune from enforcement, residential occupancy in its own planning unit would have had to have been continuous on the site since before 27 September 1989. That is not the case here as Mr Lowe did not take up residence until November 1992."
Unit 15 was dealt with on the same basis with an additional finding that the unit's residential use was not ancillary to the use of the camp as a whole.
- The decision was in these terms:
"74. For the above reasons, and in exercise of the powers transferred to me, I direct that Section (3)(i) of the EN be varied by the deletion from the Time for Compliance of the words "Two months" and the substitution therefor of the words "six months in respect of the requirements of Section 5(i) only. Subject thereto, I dismiss [the co-owners']appeal and uphold Section (3)(i) of the Enforcement Notice as varied."
- The EN and these statutory provisions give rise to three issues:
(1) Did the EN refer to the whole of Merryfield Park or only to units 15 and 30?
(2) If the EN referred to the entire Merryfield Park, did section 181 of the TCPA apply to units 91 – 93 once they became separate planning units?
(3) If the EN did not apply to units 91 – 93, are those units now in breach of planning control?
Issue 1 – The scope of the EN.
- Introduction. In planning terms, the EN was either describing the residential use of units 15 and 30 as being a material change of use of those specific units or of the whole of Merryfield Park. The site or part of the site covered by an enforcement notice is known as the planning unit and another way of putting issue 1 is to ask what is the planning unit that it covers. The concept of a planning unit was developed by judicial decision to assist in determining whether an apparent change of use was material. On a large site, particularly one where a range of uses were taking place and a large number of buildings or occupiers were located, a change of use affecting only a small part of the site would be unlikely to be material to the site as a whole. This concept, in a case of the kind posed by units 15 and 30, was well put by Diplock LJ in G Percy Trentham Ltd v Gloucestershire County Council;
"What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether there has been 'a material change of use of land?' As I suggested in the course of the argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose."
Similarly, in Burdle v Secretary of State for the Environment, Bridge J stated:
"… it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantial different and unrelated purposes. In such a case, each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit."
- The planning legislation is particularly concerned to control changes of use involving a change from non-residential to residential use. Thus, section 55 of the TCPA defines development as including:
"… the making of any material change in the use of any buildings or other land".
It follows that, although buildings are land, the legislation distinguishes between the use of an enforcement notice where there has been a material change of the use of buildings, which obviously includes changes of use from non-residential to residential use, from all other changes of the use of land.
- It follows that where an enforcement notice is addressing a material change of use involving a building which is located on a larger site but is a distinct and separate structure in separate occupation from the larger site, it is likely that that building is, and will be found to be, a separate planning unit and that any reference to "land" in the EN is a reference to that planning unit or building and not to the larger site on which the building is situated.
- NFDC's contentions. The wording of the EN described the land affected as being "the land at Sopley Camp" shown edged in red on the attached plan. The edging was placed around the perimeter of the entire Sopley Camp or Merryfield Park. The EN was issued under section 171A(1)(a) so that it was addressing an unauthorised change of use of land. The breach of planning control alleged was the change of the use of the land to a mixed use and the reasons for issuing it were that the use of the two identified buildings on the land for residential purposes involved a significant increase in the level and intensity of activities on the land (i.e. Merryfield Park) contrary to the policies of the Development Plan. The EN therefore clearly referred to the change of use.
- Contrary contentions. The defendants did not address any structured submissions concerned with the wording of the EN but they did complain that the EN could not reasonably have the meaning contended for since, if it did, the non-residential use of the site would be fixed permanently and without any of them having had any opportunity to seek a change. Mrs Owen and Mr Dirks did, however, contend that the EN appeared only to be addressing units 15 and 30 and could not reasonably be read as referring to a residential change of use at units 91 – 93 that had only occurred ten years or more after the EN took effect.
- Discussion. There are a number of contentions which were, or could be, put forward in opposition to NFDC's site-wide contentions and in support of a construction of the EN that limited its operation and effect to units 15 and 30.
- The operative part of the EN states that the breach of planning control alleged was "changing the use of the land to a mixed use including the use of buildings on the land as two residential dwellings (in the approximate position coloured navy blue on the plan), a place of public assembly for leisure activities and for day and residential, sporting training, educational and activity courses". The EN was, therefore, rolling into one enforcement notice three quite separate alleged breaches of very different kinds. One was the change of use of two buildings from non-residential to residential user. The second was the use of much of the external parts of the site for public assembly in circumstances where assemblies and external uses had previously not been undertaken. The third was to intensify the permitted use of most of the buildings currently being used for activities and to add to those activities or uses not previously provided by Merryfield Park. Thus, the EN was addressing the three alleged breaches which involved different planning uses, residential and non-residential uses, site-wide internal and external uses, two specific buildings being changed from non-residential to residential use, intensification of existing activity uses the provision of new activity uses and the changing from entirely day activities to a mixture of day and residential activities.
- The EN was, therefore, directed to a breach which was clearly occurring across the site or most of the site and a different type of breach only occurring on a small and defined area. The EN as drafted did not, therefore, conform with sections 172 and 173(1) of the TCPA and the regulations and guidance concerned with enforcement notice drafting. These provisions particularly required the EN to identify "the breach of planning control" (and not the breaches of planning control) and to clearly identify the site of the breach, namely the site of the relevant planning unit, and the nature of the breach. It is permissible to set out more than one breach in a notice but each breach must be set out separately and the particulars of each breach should conform to these requirements of the TCPA, the Regulations and the Ministerial Guidance dealing with the content of an enforcement notice.
- The particular requirements of the guidance that are relevant to this notice are:
(1) Identification of the site of the breach. The guidance set out in Circular 10/1997 provided:
2.18 Regulation 3 of the 1989 Regulations also requires that the enforcement notice shall specify the precise boundaries of the land to which it relates. This is always best done by means of a plan (preferably on an Ordnance Survey base with a scale of not less than 1/2500) attached to the enforcement notice, on which the exact boundary of the land is clearly indicated by a suitably co loured outline. If this is insufficient to identify the boundary exactly, the plan should be supplemented by a brief written description, or an accurately surveyed drawing to a larger scale.
This notice clearly identified the boundaries of the buildings (or the land on which the buildings were located) where the breaches arising from residential change of use was taking place in blue superimposed on a plan of the boundaries of the land on which the breaches concerned with intensification and change of use of the activities use of the site. If NFDC's contentions were correct and the residential use breach was site-wide, the plan should not have identified the boundaries of the two affected units or should have explained in words that although their boundaries were identified, the breach was occurring across the whole site bounded by the red line.
(2) Stating the breach clearly. The guidance also provided:
2.9 An enforcement notice must enable every person who receives a copy to know exactly what, in the LPA's view, constitutes the breach of control; and what steps the LPA require to be taken, or what activities are required to cease, to remedy the breach. It must also specify whether the breach is regarded as carrying out development without planning permission, or a failure to comply with any condition or limitation. Enforcement notices are not improved by over-elaborate wording or legalistic terms: plain English is always preferable. An eventual prosecution under section 179 of the 1990 Act may fail if the Court finds the terms of the EN incomprehensible to the lay person.
This notice appears to be alleging that the relevant planning unit was the two buildings which was situated within a larger planning unit, Merryfield Park and that the breach of planning control was the use of those buildings as two residential units which amounted to a material change of use of those buildings, thereby creating a mixed use of Merryfield Park. If the EN was intended to be alleging that there had been a material change of use of Merryfield Park because the use of two units within it had changed their use to residential use, the EN should have clearly stated that the material change of use being alleged was that of the whole of Merryfield Park. Had it specified that as the relevant material change of use, the co-owners would have known that there were two allegations which they had to meet: (1) that the whole of the site was being used for residential purposes (which it was not) and (2) that the use of two of the approximately 100 units on a very large site constituted a material change of use (which was improbable given the relative sizes of the site and the units).
- Furthermore, the EN identified on the same plan a number of different planning units being the two units being used for residential purposes which were shown in blue, the site-wide planning unit used for external assemblies and the other buildings on the site where use had allegedly intensified or where new uses had started up. It followed that the word "land" in the EN had a different meaning when it was referring to the change of use from non-residential to residential use than it had when referring to the site-wide activities it was enforcing against and a different meaning again when referring to the intensification of the various specific activities and the new provision of activities whose use had not been authorised.
- Because the EN did not split up the three breaches into separate notices, it did not contend that each breach was, separately, material. Instead, it contended that the uses collectively had led to a mixed use of the land and to a concentration of visitors to the land and was contrary to the aims and policies of the development plan. In principle, there is no objection to a notice alleging a breach of planning control occurring on a larger site than the actual area of the site being occupied. However, as the inspector in the 1997 appeal obviously thought, it was not appropriate to include the residential breaches in a site-wide notice. His thinking appears to coincide with the views of the inspector dealing with the 2011 enforcement notice appeals who stated:
"27. … I am not dealing with a site with one occupier but a multiplicity of unrelated occupiers carrying out different uses. It is not a question of a composite use of the whole where the activities of one occupier fluctuates in intensity from time to time and the different activities are not confined within separate and physically distinct areas of land. Indeed [NFDC] assert that individual units of exclusive occupation and use (based in part on key-holding and tenancies) have been created which are physically and functionally discrete … I am inclined to the view that due to the uses that have been introduced it is no longer correct to consider the whole of Merryfield Park as one planning unit. I reach this conclusion as a matter of fact and degree and on the understanding that this is not an exact science but one of interpretation."
- The 1997 appeal inspector could see that the EN was ambiguous or even defective in these respects and adopted a pragmatic but highly effective technique to correct the EN so as to maintain and successfully conclude the issues arising from it. The purpose and result of his decision and corrections was to make it clear that the EN was only enforcing against units 15 and 30 so far as the first alleged breach concerned with a change to residential user was concerned. He achieved that clarification by these means:
(1) He found that units 15 and 30 were separate planning units and considered the appeal against the residential use breach on the basis that the relevant planning units were units 15 and 30. The relevant breach was thus identified as only occurring in each of these two planning units.
(2) He only considered whether and to what extent there had been and was still continuing as an unauthorised change of use to a residential use in each of those two units. He did not consider whether this residential breach was occurring in any other unit or planning unit or over the site as a whole or whether the breach in units 15 and 30 amounted to a material change of use of the whole of Merryfield Park.
(3) He did not consider whether there was a risk of a future breach occasioned by a residential change of use at any other unit. This was because the EN could only address existing continuing breaches and could not address prospective or possible future breaches. Had he intended the EN to extend to the site as a whole, he would have had to consider whether a change to residential use at any of the other units was possible or contemplated.
(4) He directed that each of the three breaches of planning control that the EN alleged were occurring would be dealt with as if each was contained in a separate notice and each would be decided formally under separate headings.
(5) He corrected the original EN so that it became three separate notices and, thereby, he corrected the ambiguous reference to "land" in relation to the alleged first residential user breach so that that word was clearly referring, and only referring, to the site of the two units and was not referring to the site of the entire Merryfield Park.
- Thus, the EN, that is the separate EN that was concerned with a breach occurring because of a change of use to residential use, must be read as it read following its being corrected and then confirmed by the inspector. This suggests that the EN has to be read in this way
(1) The EN should be read as if the only breach it alleged was the unauthorised use of two identified buildings or units on the land as residential buildings.
(2) The land referred to was the land on which these two buildings were located, namely the blue dots shown on the attached plan which, following correction, was the original plan from which had been removed the red edging. Thus, the only identified planning units were those within each of the two blue dots which survived the correction and which remained on the plan attached to this particular enforcement notice.
(3) The breach alleged by EN was occurring, and only occurring, on two separate planning units, being the two blue dots on the plan.
(4) Since the two units were separate planning units that were separated from the planning unit comprising the rest of the site which was a different planning unit which did not include units 15 and 30, the breach referred to was solely one involving an unauthorised change of use to residential use at those two locations. That breach did not include as an additional breach or particulars of breach the alleged change of use of Merryfield Park to a mixed use.
(5) Unlike the separate enforcement notices concerned with the second and third breaches alleged in the original notice, the EN was not concerned with the intensification of the use of the site or with an unauthorised concentration of visitors which the other breaches were concerned with since these allegations were not relevant to the particular breach arising from residential use that the EN was concerned with.
(6) The EN did not address a possible breach arising from a future unauthorised residential use of other units located elsewhere within Merryfield Park outside units 15 and 30. It could not have done so since an enforcement notice must only refer to existing breaches and not possible future breaches. Thus, the EN could not have been incorporating any unauthorised change of use to residential use that had not yet occurred but which occurred in the future because such a possible change of use could not be enforced against and, in any event, was not being enforced against given the language of the EN.
- It can be seen from the inspector's reasons that he was only concerned with units 15 and 30 and, moreover, with only two issues that were specific to those two units. The first of these issues was whether unit 30 was a separate planning unit or whether it had remained within the larger Merryfield Park planning unit and was being used residentially as an ancillary use to the existing authorised use of that wider planning unit. The second of these issues was whether the residential user within the smaller planning unit had lasted for at least four years so that the residential use breach was immune from enforcement action. The inspector found that neither of these objections to the EN had been made out. However, by concentrating on those two issues and in deciding them in the way that he did, the inspector was clearly only concerned with whether an enforcement notice that only covered units 15 and 30 should be confirmed. He was clearly not concerned with the possible material change of use to residential use on any other unit at Merryfield Park or with entire Merryfield Park planning unit.
- Conclusion – issue 1. It would seem, therefore, that the defendants have a good arguable case for showing that the EN was only concerned with units 15 and 30 and that it was not concerned with any other unit on the site.
Issue 2 – Units 91 – 93 in separate ownership.
- Introduction. If the EN did embrace the whole of the Merryfield Park site so far as residential use was concerned, a second issue arises. This is whether, on that basis, the EN continued to apply to each of the units 91 – 93 after the following events had occurred:
(1) When Mr Biddlecombe bought unit 91 in July 2005 and Mr Malem became his tenant, having started to occupy it in November 2005;
(2) When the Owens started to occupy unit 92 in March 2007 having bought it from Mr Biddlecombe in August 2006 after he had bought it from the co-owners in March 2005;
(3) When the Greenshields started to occupy unit 93 in February 2011 as tenants of the co-owners or when they bought it from the co-owners in August 2011.
- If these units remained part of the Merryfield Park planning unit after the EN was served and confirmed, each became a separate planning unit when it passed out of the co-owners' control or when it was sold by them. It is therefore arguable that even if the EN extended to units 91 – 93 originally, it ceased to apply to those units on the respective dates when each ceased to form part of the overall site planning unit and became its own individual planning unit.
- The relevant parts of section 181 provide that when a use of land has had to be "discontinued" by an enforcement notice, that use is "discontinued permanently to the extent that it is in contravention of [section 55(1) of the TCPA]" so that any "resumption" of that use "after it has been discontinued" shall be "in contravention of the [original] enforcement notice". If the EN was concerned with the entire Merryfield Park, there are two related reasons why the alleged changes of use at units 91 – 93 were not covered by section 181. These are:
(1) Section 181 is concerned with the resumption of a specified breach following its discontinuation as a result of compliance with an enforcement notice. If units 91 – 93 were correctly to be regarded as being included in the land referred to in the EN, their use as residences was not ordered to be discontinued by the EN since they were not being used in that way in 1997 and residential use at those units was not discontinued as a result of the EN.
(2) Residential use at each of units 91 – 93 did not resume in respectively, 2005, 2007 and 2011 but it started for the first time.
It follows that section 181 is inapplicable to units 91 – 93 even if the EN was site-wide in its wording and effect. This is because, at those particular units and following their becoming separate planning units, the subsequent change of use was not one that had previously been discontinued nor was one which was being resumed.
- Conclusion – issue 2. In 2006, when Mr Malem started to use unit 91 as Mr Biddlecombe's tenant and in 2007, when the Owens started to use unit 92 for the first time for residential purposes, it would seem that they were not resuming the discontinued residential use of Merryfield Park, they were initiating unauthorised residential use of units 91 and 92 which had never previously been used for such purposes. That new use in the new planning unit that arose when units 91 and 92 passed out of the co-owners' hands could not, save by a strained interpretation of section 181, be regarded as a "contravention of the enforcement notice" even though it was a contravention of planning control and was not capable of being enforced against by a new enforcement notice. The same contention would apply to unit 93 from August 2011 when the Greenshields bought it from the co-owners. In those circumstances, and if this interpretation of section 181 is correct, units 91 – 93 are not subject to section 181 and no contravention of the EN has occurred there.
Issue 3 - The possible effect of section 171B of the TCPA.
- Introduction. If units 91 – 93 were never included in or affected by the EN or if they were originally but are now not covered by it or by the provisions of section 181 of the TCPA, it is necessary to consider whether those units are now immune from enforcement action due to the effects of section 171B of the TCPA. This section provides that where there has been a breach of planning control consisting of the change of use of a building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach. In this context, "enforcement action" refers, and only refers to the service of an enforcement notice. It follows that if there is no unremedied breach of an enforcement notice relating to a unit's change of use to a residential use, no further enforcement action may be taken in respect of that breach if the change of user occurred more than four years before that further enforcement action is taken. At that point, the unauthorised residential use is treated from that time on as being lawful since it cannot any longer be enforced against.
- The Owens. If unit 92 was never subject to the EN or it ceased to be subject to it when Mr Biddlecombe bought the unit from the co-owners or the Owens bought it from Mr Biddlecombe, it is now immune from enforcement action since more than four years have elapsed since the Owens started to live in the unit and changed its use to an unauthorised residential use in March 2007.
- Mr Malem. Mr Malem has always contended that he was using unit 91 as an ancillary residential use to its authorised use since he was employed as a night watchman by the co-owners and was permitted to reside in unit 91 for so long as he continued in that employment. However, as NFDC has always contended, unit 91 was owned by Mr Biddlecombe from July 2005 and was a different planning unit to the rest of Merryfield Park. It is not in law possible for Mr Malem to occupy unit 91 as an ancillary use since a building can only be used in a way that is ancillary to other buildings or land if it is in the same planning unit as they are. Furthermore, Mr Malem appears to have been occupying unit 91 under a lease or licence that had originally been with the co-owners but which appears to have been assigned to Mr Biddlecombe when ownership of the unit was transferred to him.
- It follows that Mr Malem occupied unit 91 from July 2006 as his residence and its use became an unauthorised residential use from that date. It also follows that, on this basis, it was no longer possible to enforce against that use from July 2009 since the four-year period provided for by section 171B ended then. It is true that the unit was transferred back to the co-owners in August 2012 and it may well be that, as between Mr Malem and the co-owners, he now has the status of an employee living in a tied residence. However, unless the residential use of unit 91 has been formally abandoned, it continues after its ownership was transferred back to the co-owners who can now take advantage of section 171B and may now use unit 91 lawfully for residential purposes. It would be a question of planning fact for NFDC or an inspector on an appeal to determine whether its residential use, which started in 2006, was abandoned when ownership was transferred back to the co-owners.
- The Greenshields. The Greenshields first started to use unit 93 as their residence in February 2011 so that, if the unit had not been used for residential purposes prior to that date, its unauthorised use may still be enforced against. What is not clear is whether unit 93 had been converted for use as a residence before the Greenshields first occupied it. On the basis of the information provided by Mrs Greenshields, her husband spent about two weeks before they moved in redecorating the inside of the unit which suggests that it had been converted to residential use sometime before the Greeenshields had been granted a tenancy in 2011. If its use had been changed to unauthorised residential use in or before February 2009, it is possible that it too would be immune from enforcement action whose objective was to bring residential use of that unit to an end. Otherwise, unit 93 will only acquire immunity in March 2015 if no enforcement action is started before then.
- Conclusions – issue 3. If units 91 – 93 were never subject to the EN or they ceased to be subject to the EN, units 91 and 92 are now immune from enforcement action since more than four years have elapsed since the Owens started to live in the unit and changed its use to an unauthorised residential use in March 2007 and since Mr Malem occupied unit 91 from July 2006 as his residence and its use does not appear to have been formally abandoned. On the same basis, if unit 93's use had been changed to unauthorised residential use in or before February 2009, it is possible that it would also be immune from enforcement action. Otherwise, unit 93 will only acquire immunity if no enforcement action is started before March 2015.
Conclusions – EN
- It would seem, therefore, that the defendants have a good arguable case for showing that the EN was only concerned with units 15 and 30 and that it was not concerned with any other unit on the site. If so, residential use of units 91 and 92 is now immune from enforcement but not that of unit 93 unless its residential use started in or before February 2009.
(2) LDC – issues 4 - 7
- Introduction. NFDC relies as the second pillar of its case for injunctions on the existence and wording of the LDC it issued on 9 March 2005 on the application of the co-owners. The purpose of the certificate is to define the lawful use of the site and it is provided for in section 191 of the TCPA in these terms:
"191 Certificate of lawfulness of existing use or development.
(1) If any person wishes to ascertain whether—
(a) any existing use of buildings or other land is lawful;
(b) any operations which have been carried out in, on, over or under land are lawful; or
(c) any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful,
he may make an application for the purpose to the local planning authority specifying the land and describing the use, operations or other matter.
(2) For the purposes of this Act uses and operations are lawful at any time if—
(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.
(3) For the purposes of this Act any matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful at any time if—
(a) the time for taking enforcement action in respect of the failure has then expired; and
(b) it does not constitute a contravention of any of the requirements of any enforcement notice or breach of condition notice then in force.
(4) If, on an application under this section, the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application.
(5) A certificate under this section shall—
(a) specify the land to which it relates;
(b) describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f), identifying it by reference to that class);
(c) give the reasons for determining the use, operations or other matter to be lawful; and
(d) specify the date of the application for the certificate.
(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
(7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactments, as if it were a grant of planning permission—
(a) section 3(3) of the Caravan Sites and Control Sites and Control of Development Act 1960;
(b) section 5(2) of the Control of Pollution Act 1974; and
(c) section 36(2)(a) of the Environmental Protection Act 1990. "
- The LDC issued by NFDC identified the lawful use of Merryfield Park as being:
"Use of land as a training and rest camp on an occasional basis including day and residential training, educational and activity courses and ancillary uses."
The use described by the certificate was different to the use description drafted by the co-owners that had been set out in their application when applying for the certificate. Their description was:
"generally as:- day and residential training, educational and activity courses, ancillary dances, shows, exhibitions and displays."
- The identification of the lawful uses that may be made of Merryfield Park has consistently given rise to considerable difficulty since the co-owners acquired the site in 1989 and their description has always been problematic. The reasons for these difficulties include the fact that until 1989, the site was owned by the Crown and was not subject to planning control and the co-owners inherited all the lawful uses that the Crown had made of the site which had not been abandoned before 1989 and have since been entitled to use the site in the same way without obtaining planning permission. These prior uses were presumably identified in the sales brochure or other sales material prepared when the site was marketed by the Crown in the 1980s but these materials have never been produced to those subsequently concerned with identifying those prior uses. As a result, the varied use of the site over nearly 40 years up to 1989 by the Crown does not fit into any established use category and has defied any accurate or enforceable description or definition. As a further difficulty, the site became subject to Green Belt policies in 1958 and soon afterwards was located and still remains within the relevant Green Belt. Despite that, its established use, whatever that might be, cannot be eliminated but no new use has been lawfully established since that would be subject to the severely restrictive controls that Green Belt sites are subject to. The site has acquired, in a number of its units, new unit-specific storage uses due to long uninterrupted user which cannot now be enforced against which adds a further difficulty to the identification of the relevant planning unit and lawful range of uses.
- The site had been used for nearly 30 years as a RAF base and then camp until the early 1970s and then for about 15 years for variety of uses associated with both service and non-service user. Thereafter, when its Crown use ceased, its various Crown uses have had to be transposed to equivalent civilian uses. Since the terms and particulars of sale to the co-owners have never been produced, it has not been possible to see the basis on which the site was bought by them. NFDC has always sought to restrict the site's authorised uses to the minimum given its current Green Belt status and the co-owners repeatedly but unsuccessfully have sought planning permission for various forms of residential use whilst the NFDC has repeatedly, and largely successfully, sought to curtail any intensification or modification of the site's existing use using its enforcement powers. This culminated with the NFDC drafting a LDC in 2005 with a use definition which is difficult to enforce and does not accurately describe the full range of lawful uses that the site had acquired during the preceding decades of use by the Crown and then the co-owners. Furthermore, the co-owners are not parties to these applications so they have not had an opportunity of presenting a full use history of the site or a description of the precise respects in which it has been used both before and after they acquired it.
- These difficulties have been compounded by NFDC's practice of reverting to the available but imperfect descriptions of the use of the site during its period of ownership by the Crown and in early planning appeal decisions after the site was acquired by the co-owners rather than ascertaining how it had been used as a matter of fact in the immediate past given that any current use that has been in place for at least ten years is now immune from enforcement action. This would be a more practical way of identifying the full range of lawful present uses since any uninterrupted use for more than ten years, or for more than four years in the case of residential use, is immune from enforcement action. Any use that was not covered by a description that was produced in this way but which could be proved to have been an historic use which had not been abandoned could then be added to that description and so long as that extended description was kept up to date, many of the intractable arguments about the site's permitted use would cease.
- One advantage of this approach would be to identify whether the site is, any longer, to be regarded as a single planning unit with specific exceptions created by non-conforming use which can no longer be enforced against. The way that the site is used is such that it would appear now to consist of up to 150 separate planning units created by the used and derelict units still located there with an over-arching planning unit of the site as a whole which covers those uses which take place on a site-wide basis. That was the way that the site was dealt with by both the 1997 and 2011 enforcement notice appeals. It is also the way that the planning issues arising in these applications must also be addressed since units 91 – 93 are now separate planning units from the Merryfield Park planning unit and any change of use now in issue must be tested against the lawful uses that may be made of each unit rather than of Merryfield Park. The lawful uses that may be made of each unit are obviously those uses that may be made of them previously when they formed part of the overall planning unit but, on being severed from that larger planning unit, the individual units must be taken to have abandoned such uses that they previously had which are incapable of being maintained in a single unit that has been separated from the much larger area. Many of the activity-uses, for example, such as war games, are site-wide and not readily capable of being maintained on a separate unit. Units 91 -93 would have retained as a lawful use or uses whatever residential or rest uses, other than ancillary uses of that kind, that Merryfield Park had at the time when each of those particular units left the wider planning unit. It is those retained uses against which any material change of use or intensification of use must be measured.
- Since the 2005 LDC is still the starting point for the definition of the site's established and authorised use, it is necessary to take that definition first. NFDC's's witnesses informed the inspector at the 2011 enforcement appeal that the source of the wording used in the drafting of the LDC's use definition was the wording of the EN appeal decision that dated back to 1997. If that is so, the draftsman of the 2005 wording changed the 1997 wording significantly in several major respects. Since the Owens and the Greenshields contend that their use of units 92 and 93 is lawful irrespective of their possible immunity from enforcement action and since they also contend that the appropriate yardstick to measure their contentions is the previous actual and factual use of the site rather than the unworkable definition of use provided by the LDC, it is first necessary to consider the imperfections of the use definition and of the LDC itself before considering what the best evidence of current authorised use was and whether the defendants' suggested use of their units is unauthorised. I must keep in mind that it is not permissible for me to reach any conclusions about the planning merits or factual issues that are raised by these questions or to reach final conclusions about any legal issues such as the correct meaning and effect to be placed on the wording of the LDC.
- The LDC gives rise to four issues:
(4) What is the use identified by the LDC for units 91 - 93 in terms of the nature and frequency of use?
(5) Is the LDC enforceable?
(6) What is the current enforceable lawful use of units 91 – 93?
(7) Are the defendants currently using units 91 - 93 unlawfully and, if so, what is the breach?
Issue 4 – The LDC terms.
- Introduction. The definition of use in the LDC is problematic, in relation to these applications, in these respects:
(1) The phrase "training and rest camp".
(2) What is permitted by "training".
(3) What is permitted by "rest".
(4) What restrictions are placed on the site by the word "camp".
(5) What restrictions or limitations are imposed by the words "on an occasional basis".
(6) What uses are "ancillary uses".
(7) What form of residential use is permitted, if any.
- The identification of the permitted uses logically should start with the lawful uses of the site in 1989 when the co-owners acquired it. Since the site was sold by open tender, the description of the then current uses of the site that would have been provided in the tender documents would have been a valuable source of information about the site's lawful uses in 1989. It may be that those documents are no longer available. However, Circular18/84 defined what planning controls were to apply to Crown land on being sold to a private third party. This policy was applicable to the site when sold in 1989. Paragraph 21 stated:
"Since the Crown is not subject to planning legislation, any use of land which it institutes is a lawful use and … can be continued by a third party, e.g. a purchaser of land … without risk of enforcement."
- The inspector in the section 64 appeal in July 1992 concluded from the available evidence that occupation of the site by refugees ended in 1983 and that as a result that use had been abandoned. He also concluded that the Household Cavalry use was as a "rest camp" and that that use was still extant in 1989 even though the Cavalry had not used the camp since 1986. The inspector's task in the appeal that he was deciding was to ascertain the last known use of the site which he concluded had been its use in the period from 1983 – 1989 including any uses, such as the Cavalry use, which appear to have been abandoned before 1989. He excluded the Vietnamese refugee use because that, he considered, had been abandoned in 1983.
- Although those findings were needed for the determination of the section 64 appeal, they did not necessarily conclude the issue of what the full range of the site's lawful uses was in 1989. This is because the test of those uses was different from the test of what the site's last use was. The relevant test for determining the site's lawful uses was that imposed by Circular 18/84 which was "any use of land which [the Crown] institutes is a lawful use". That test would appear either to include the Vietnamese refugee use, since it had been discontinued rather than abandoned, or to exclude both that use and the Cavalry use, on the basis that both had been discontinued. Indeed, the Circular test appears to include uses introduced by the Crown and then abandoned by them. Thus, there was some basis for including a residential refugee camp in the list of permitted uses since even if that use had ended or even had been abandoned, it was still "any use of land which the Crown had initiated" as defined by Circular 18/84. Equally, the type of rest camp use permitted appeared to have been wide enough to cover residential quasi-holiday periods by members of the Household Cavalry.
- However, the inspector in his 1997 decision stated that the site could lawfully be used for training courses, activity courses and residential camps because these were Crown uses up to 1989 but, in reliance on the 1992 decision, he concluded that refugee camp use was not any longer a lawful use of the site. These findings do not appear to be consistent with each other since the site had been used by the Crown as a refugee camp by Vietnamese refugees between 1979 and 1982 and as a summer and winter camp by members of the Household Cavalry Mounted Regiment with their horses between 1983 and 1986.
- In subsequent decisions, it would seem that inspectors have concluded that permitted uses do not involve any military or services input but do suggest some form of institutional use. They have also concluded that a training use relates to vocational or non-cerebral training, that residential uses are permitted and that the activity courses that are permitted can extend to courses which are not purely for beginners or learners. Moreover, some of the activities that are permitted are of a recreational nature and these decisions make clear that training uses and rest uses are permitted as separate categories of use so that these uses are disjunctive and not conjunctive. They have also concluded, or noted, that permitted uses may be either day or residential, may take place inside and out of doors and that a few particular units are now permitted to be used for storage purposes.
- These decisions have also concluded that the requirement that the permitted uses should be occasional is a reference to the type of use and not the frequency of user. Thus, there appears to be no restriction on the number of hours per day or days per year that the site is in use, oo the number of different units that may be used at any time or on the number of different uses or individual users using the site at any one time. What appears to be limited is the extent to which any one user may use the site. Individual use appears to be limited to a use that is intermittent, i.e. a training course taking place once a week for half a day at a time. Even this restriction is limited since it would seem that a user, such as a training college, could run different courses back to back so long as each course is broken up into modules or sessions.
- It was therefore questionable for NFDC to adopt the form of words that it did in issuing the 2005 LDC. The words appear to cut down significantly the ambit and extent of the uses that are permitted since they limit the training, educational and activity courses to those that are held within the framework of a "training and rest camp on an occasional basis" where training and rest camp are to be read conjunctively. Moreover, on a restrictive interpretation of the "on an occasional basis" wording, any or all of the following are restricted: the number of different uses, the type of uses, the number of units used, the number of different uses that may occur simultaneously, the number of hours per day or days per annum each used unit may be used for, the intensity of use of both individual units and the site as a whole and the extent of the continuous or intermittent use that may be made of the site as a whole.
- The meaning of "training and rest camp" contended for by NFDC would appear to place an almost insurmountable barrier on any lawful use of the site since it is hard to describe a real life use of the site which is carried out on an occasional and institutional basis and which is run simultaneously as both a training and rest camp use. This is particularly so if, as NFDC also contends, training and educational uses have the same meaning that is confined to non-recreational non-cognitive instruction.
- In the light of the history of the use of the site that I have summarised and of these various considerations, I consider that the Owens' and the Greenshields' contentions are reasonably arguable. They contend that they were informed by the co-owners before they bought their respective units, and bought them on this basis, that each unit was permitted to be used for residential purposes by them so long as they confined that use to a periodic use whose pattern involved intermittent periods of use in which each period was not unduly long and in which the total number of days of occupancy each year was not unduly lengthy. Such a use, for each of them, would constitute permitted "rest use on an occasional basis" since, in the case of the Owens, they spent periods of time in their caravan in Cornwall and, in the case of the Greenshields, spent periods of time with various relatives in Spain. Both couples bought their respective units in arms length transactions at market value on the basis of a valuation linked to that use and both pointed out that they had searched, or caused a search to be made of, NFDC's register of enforcement notices and had not discovered any relevant enforcement notice referring to units 92 and 93 or any notified planning restriction of any kind of residential use for those units.
- These contentions can be seen arguably to be supported by the 2005 LDC use definition taken in its context of the planning history of the site as a whole and of the various relevant appeal decisions and factual uses that have been permitted or not enforced against over the last 20 years or more. Of course, it is not the function of the court to provide its own meaning or interpretation to the LDC wording but merely to consider whether it is fair to impose an injunction on the basis that residential use that is both occasional and in the nature of rest is clearly and unequivocally not permitted by that wording. I bear in mind that NFDC contends that even if the Owens and the Greenshields are correct in their contentions that the units may be used for occasional rest-type use, their actual use is, to all intents and purposes, permanent and uninterrupted. The Owens and the Greenshields deny that that is so and contend that their use is within the bounds of what is permitted by this somewhat ambiguously worded sui generis use arising from the site's unique planning history. These factual contentions are disputed and they cannot be resolved without a full trial and, in any event, would if established, at best limit the injunctions that might be imposed to requirements that the use that should be made of the units must be confined to the occasional rest-use that is permitted and, at worst, preclude the grant of injunctions since the limits of what is or is not permitted are too vague and imprecise to be enforceable by way of injunctions.
- If consideration is given to the contentious words of the use definition, it can be seen that the defendants' contentions are at least arguable. Taking the disputed words in turn:
(1) "Training and rest camp". It is clear from the 1992, 1997 and 2011 appeal decisions involving the co-owners that it has never been contended that the site must only be used for a use that involves both training and rest camp use. If these words are to feature at all, the phrase must be read disjunctively and, as is so often the case in legal documents, "and" means "or".
(2) What is permitted by "training". It is also clear from the history of the use of the site and from the three appeal decisions that I have referred to that both training and education have taken place on the site over the years, in other words the courses that have been put on and the studying and teaching and learning experiences that have been provided cover the whole range of vocational, recreational and educational learning.
(3) What is permitted by "rest". It is also clear that the rest element of use has, historically, extended to use that is equivalent to holiday home use, to residential use over significant periods of time for people who are both resting and being trained or taught, to use that has provided living quarters for large numbers of people in both a services and a refugee environment and a place to live for both staff and security personnel.
(4) What restrictions are placed on the site by the word "camp". The word "camp" appears to be describing the physical attributes of Merryfield Park rather than the nature of the regime under which the training, education, activities and other uses are delivered. If so, it would follow that there is no requirement that the regime under which the various uses are undertaken must be institutional in nature or that Merrifield Park must be run on a not-for-profit, charitable or non-commercial basis.
(5) What restrictions or limitations are imposed by the words "on an occasional basis". It is hard to provide any obvious and functional meaning to this phrase. The most sensible and workable meaning is that which I have already provided, namely that each individual use, be it a course, a period of rest, a permitted activity or a use described as an ancillary use, must be delivered to individuals in one or more short bursts. The training course must, for example, last for no longer than a relatively short period of time rather than being full-time over many months. However, each unit and the site as a whole may be used simultaneously and continuously and each use may take place over as many or as few units as necessary and as many different courses or groups as can be accommodated at any one time may take place simultaneously.
(6) What is meant by" ancillary uses". Ancillary uses can mean uses that are subordinate or supportative of the permitted uses. It can also mean uses that are similar to the defined or current uses so as also to be permitted. In its context, "ancillary" appears to have the former and not the latter meaning.
(7) What form, if any, of residential use is permitted. Residential use in the context of the LCD is not confined to living in a dwelling house or in a building as a home given the large number of residential uses and places that are regularly used on site by course participants, staff, those taking rests, refugees and others. What is not permitted is residential in a planning sense but what may or may not be prohibited is living analogous to a holiday let, a service let or even as a second home so long as each visit does not last long and the total number of days that each let is let out for is only a small proportion of the year as a whole.
- The actual meaning and the question of whether a particular use falls within the wording are questions of fact and degree which must be decided by the planning authority. What is clear is that there is at present no authoritative definition or lexicon that defines the active and working meaning of these words in the context of this LDC and of the use being made of this site.
- Conclusion – issue 4. It its at least open to argument that the uses which the Owens and the Greenshields contend were the uses they were informed by the co-owners were permitted and for which they acquired their respective units for or for which they contend that they have since been using them for. In other words, it is arguable that their contended permitted use falls within the range of permitted uses defined by the LDC. Those uses may be described as the use of units 92 and 93 on an intermittent basis for shortish periods of time which do not add up to more than a relatively small proportion of the year as a second or holiday home being a rest from their normal routine and being similar to the residential occupation (in a non-technical sense) of the residential blocks on site. It has to be remembered that the test is not whether the current use is a change of use, it is whether it has intensified from the current permitted use to amount to a material change of use or is use that is materially different from that currently permitted. These are factual questions which must be tested, if necessary, against the meaning of the words used in the LDC when taken in their context and in the light of the use of the site at the time that the LDC was issued. There does not appear to have been an appropriate examination of those questions by either NFDC or by an inspector at an enforcement inquiry.
Issue 5 – LDC not enforceable
- Introduction. For an LDC to be enforceable, the wording of its use definition should be clear, unambiguous and capable of founding a conviction or a finding of contempt if an appropriately worded enforcement notice or injunction is issued. Another way of putting this point is to say that the LDC should be drafted in conformity with the appropriate ministerial guidance. The relevant provisions read:
"8.16 Subsection (5) of section 191 provides for certain matters a LDC must contain. The LDC is particularly valuable because its effect is similar to a grant of planning permission. It is therefore vital that the certificate indicates precisely the area of land to which it relates (normally by means of an attached, scaled site-plan); precise details of what use, operations or failure to comply with a condition are found to be lawful, why, and when. For example, if a certificate is for a use of land … it is important for it to state the limits of the use at a particular date. These details will not be legally equivalent to a planning condition or limitation. They will be a point of reference, specifying what was lawful at a particular date, against which any subsequent change may be assessed. If the use subsequently intensifies, or changes in some way to the point where a "material" change of use takes place, the LPA may then take enforcement action against that subsequent breach of planning control (which a less precise certificate might well preclude). A LDC must therefore be precisely drafted in all respects.
- Conclusion. In the light of the considerations addressed in issue 4, this LDC is arguably not capable of being enforced or giving rise to a conviction for breach of planning control and is not capable of providing a yardstick to measure whether a breach of planning control has occurred.
Issue 6 - Current permitted use of units 91 – 93.
- Introduction. The most satisfactory way of determining the current permitted use of units 91 – 93 is to consider what use has been made of these units since the co-owners acquired the site and whether any other unauthorised use has occurred which is now immune from enforcement action.
- In the case of the Owens, it is arguable that their residential use is now immune from enforcement since, arguably, there is no previous enforcement notice in place requiring residential use to cease and their residential use has occurred over a period of more than 4 years since March 2007. If that is incorrect, it is arguable that the Owens may use unit 92 on an occasional basis as a residential unit as a rest from their occupation of their caravan in Cornwall. This use is sufficiently similar to the residential use of the residential units on site as to not constitute a change of use or an intensification of use from the historically permitted use for unit 92.
- In the case of the Greenshields, it is arguable that they may use unit 93 on an occasional basis as a residential unit as a rest from their life in Spain. This use is sufficiently similar to the residential use of the residential units on site as to not constitute a change of use or an intensification of use from the historically permitted use for unit 93.
- In the case of Mr Malem, it is arguable that he is occupying unit 91 as a residential use and has been occupying it in that way since November 2005. His use in this way is now immune from enforcement. Alternatively, he is, since August 2012, occupying in connection with the use of the site for lawful purposes and, since then and whilst he continues to be employed by the co-owners of Merryfield Park as a night watchman or for security and maintenance purposes, he is lawfully using unit 91.
Issue 7 – Are the defendants currently lawfully occupying units 91 – 93?
- Introduction. The following conclusions are arguable:
(1) The Owens are currently lawfully residing in unit 92 since their use of it for residential purposes started more than four years ago. Alternatively, it is arguable that they are lawfully occupying it on an occasional basis as a rest from their caravan home in Cornwall and are entitled to keep residential paraphernalia on the site of and within unit 92 for their lawful use of the site. There is no precise definition of what period in total may be used in this way but it is unlikely to exceed 12 weeks which must be an accumulation of a reasonable number of smaller periods over a yearly period so as to constitute occasional use.
(2) The Greenshields are arguably lawfully occupying unit 93 on an occasional basis as a rest from their life in Spain and are entitled to keep residential paraphernalia on the site of and within unit 93 for their lawful use of the site. There is no precise definition of what period in total may be used in this way but it is unlikely to exceed 12 weeks which must be an accumulation of a reasonable number of smaller periods over a yearly period so as to constitute occasional use.
(3) Mr Malem has arguably been lawfully occupying unit 91 since about November 2009 when his residential use of it became immune from enforcement. There was arguably no change of use when he was granted a new contract of employment and the unit reverted to the co-owners' ownership in August 2012 and that, for planning purposes, the use of unit 91 is still a residential use. Alternatively, he has since August 2012 been lawfully occupying unit 91 as an adjunct to its lawful use within the site's overall planning unit.
Conclusions - LDC
- The use definition contained within the LDC has a much broader and mush more widely applicable meaning than that contended for by NFDC and is arguably unenforceable. However, the present use that Malem, the Owens' and the Greenshields' contend for is arguably correct and, if their evidence is correct but which has never been tested, they are arguably complying with it.
(3) Issues 8 – 10: Previous enforcement action
- Introduction. In 2010, the Owens pleaded guilty and were convicted in the Magistrates' court for using unit 92 in breach of the EN and, at a separate hearing, Mr Malem pleaded guilty to a similar summons that was dealt with at a different hearing on the same day in relation to unit 91. Moreover, Mrs Owen's application for planning permission to change the use of that unit to residential use was dismissed by an inspector on appeal in 2011. Finally, NFDC has made repeated informal attempts to persuade the Owens' to stop using unit 92 as their residence. These matters give rise to three issues:
(8) Do the convictions of the Owens and Mr Malem have an adverse effect on their defences to the claims for injunctions?
(9) Does the rejection of Mrs Owen's planning appeal have an adverse effect on the Owens' defences to the clams for injunctions?
(10) Do the attempts by NFDC to persuade the defendants to stop using units 91 – 93 as a residential use have an adverse effect on the defences of the defendants to the claims for injunctions?
Issue 8 - The Owens' section 179 convictions.
- Introduction. This issue is concerned with whether the Owens' convictions following their guilty pleas that they contravened the EN are a bar to their relying on issues 1 - 7 as a defence.
- The Owens pleaded guilty in the Magistrates' Court to an offence under section 179 of the TCPA which had been summonsed on 5 April 2010. The offence was to use unit 92 as a residential dwelling in contravention of the EN. By pleading guilty to this charge, the Owens accepted that the EN covered unit 92. Their contention in these proceedings that the EN did not cover unit 92 is therefore at variance with their guilty pleas. The question arises whether the Owens should be permitted to advance a case which is at variance with those guilty pleas.
- To answer that question, it is necessary to consider section 11(2)(a) of the Civil Evidence Act 1968. That provides that in these proceedings the Owens are to be:
"… taken to have committed [the offence of non-compliance with the enforcement notice] unless the contrary is proved".
That means that the Owens are to be taken to have been in breach of an enforcement notice issued in 1995 by occupying unit 92 for residential purposes unless and until they are able to prove that they were not in breach of that notice.
- Thus, it is open to the Owens to seek to prove that they are not currently in breach of the EN because it never covered unit 92 or because it ceased to cover it in 2006 and their residential user is now immune from enforcement action and is no longer unlawful. Their previous conviction would ordinarily be good evidence of their currently being in breach of the EN but that presumption would be rebutted if they succeeded in either of these contentions. They are entitled to argue that they pleaded guilty in the Magistrates' court without taking legal advice and whilst they were unrepresented and they were unaware of the legal arguments that I have outlined in this judgment to the effect that the EN, when properly interpreted, did not cover unit 92.
- It follows that if they can show that as a matter of law the EN did not cover their use of unit 92, they have a good defence to the present proceedings notwithstanding that earlier conviction. It makes no difference that they pleaded guilty in the Magistrates' Court rather than being found guilty after a trial.
- A further reason why their convictions are no bar to their mounting their present defences is that they were in breach of planning control when they were served with the summons since, at that time, they had not acquired immunity from enforcement action and were living full-time at unit 92. However, since then, they have acquired immunity and are not living full-time at unit 92. Thus, the factual basis upon which they were convicted has significantly changed in their favour.
- Conclusions - issue 8. Their convictions in the Magistrates' court is no bar to their present defences.
Issue 9 - Mrs Owen's change of use appeal
- Introduction. Mrs Owen's appeal against NFDC's refusal of her application for a retrospective change of use of unit 92 does not affect the Owens' present contention that it is now too late to enforce against their residential use of unit 92. The application for retrospective permission was submitted to NFDC on 20 March 2010 at a time when the Owens had not obtained immunity from being enforced against. This is because they only first obtained immunity, if at all, in March 2011, four years after they occupied unit 92. Thus, the application for retrospective permission did not involve any contention that the EN was valid.
- Discussion. The inspector's reasoning is something which would need to be taken account of in any future application for permission to change the use of unit 92 to residential use given its location in the Green Belt. However, circumstances have changed since 2011 when the refusal decision was promulgated. Firstly, the NPPF is now in force and paragraph 89 suggests that unit 92 should be considered for a change of use since it would amount to the alteration of a building which does not result in disproportionate additions over and above the size of the original building. It might also amount to the re-use of a building which is of a permanent and substantial construction which preserves the openness of the Green Belt since it has been in place unaltered from a time preceding the creation of the Green Belt and therefore preserves the openness of the Green Belt.
- A second change of circumstances is that there is now a much stronger case for the Owens and the Greenshields' ability to rely on article 8 of the ECHR. This article is engaged and it is arguably disproportionate to dispossess the Owens' and the Greenshields' residential occupation of their respective homes, which they own, pending the finalisation and implementation of the current draft policy SOP1 and the Green Belt sections of the NPPF. It is at least possible that both units will be converted into residential use or that both couples will obtain a new affordable home in return for their participation in the necessary re-arrangement of the site resulting from the implementation of the new policies on the site.
- Conclusion issue 9. It follows that the 2011 planning decision is not likely to have an adverse effect on the Owens' defence to the injunction proceedings.
Issue 10 - The effect of NFDC's previous enforcement attempts.
- NFDC has made commendable attempts to persuade the defendants to leave their respective units. These attempts have been listed in paragraph 28 above. However, none of these attempts has had any significant effect on the defences now being advanced by the defendants.
Conclusions – Previous enforcement action
- The Magistrates' court convictions, the 2011 planning appeal decision and NFDC's previous enforcement attempts have not had any adverse effect on the defendants' defences to the injunction proceedings.
(4) Issue 11 – Section 187B
- Introduction. It is highly material in deciding these injunction applications to have in mind the detailed guidance available to judges as to how they should approach and decide section 187B injunction applications. This gives rise to issue 11:
(11) What are the general principles governing the issue of a section 187B injunction?
- General principles governing the issue of a section 187B injunction. The approach that any court should take when considering any application by a local planning authority such as NFDC under section 187B of the TCPA for injunctive relief in support of its planning functions and duties has been fully and authoritatively set out in two judgments in the South Buckingshire DC appeals, being the leading judgment of Simon Brown LJ in the Court of Appeal and the speech of Lord Bingham in the subsequent appeals to the House of Lords. All the cases argued in these appeals involved attempts by local planning authorities to displace travellers from land on which they had no authority to pitch but the judgments provide wide-ranging and comprehensive guidance for all types of application in all types of cases proceeding under section 187B. It is instructive to set out significant but relevant extracts from both these judgments.
- South Buckingshire DC v Porter, Simon Brown LJ, with whom the other members of the court agreed, provided this detailed and helpful explanation of the considerations as to whether or not a court should grant an injunction under section 187B and, if so, on what terms:
"The approach to s.187B
38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a s.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 s.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. … Rather I prefer the approach suggested by the 1989 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be "commensurate" – in today's language, proportionate. The Hambleton approach 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 s.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."
- Lord Bingham, giving the leading speech in the House of Lords in confirming the judgment of Sim0n Brown LJ in South Buckinghamshire which was conjoined with two other appeals arising out of section 187B, in an appeal now known as Wrexham BC v Berry, stated:
27. The jurisdiction of the court under section 187B is an original, not a supervisory, jurisdiction. The supervisory jurisdiction of the court is invoked when a party asks it to review an exercise of public power. A local planning authority seeking an injunction to restrain an actual or apprehended breach of planning control does nothing of the kind. Like other applicants for injunctive relief it asks the court to exercise its power to grant such relief. It is of course open to the defendant, in resisting the grant of an injunction, to seek to impugn the local authority's decision to apply for an injunction on any of the conventional grounds which may be relied on to found an application for judicial review. As Carnwath J observed in R v Basildon District Council, Ex p Clarke :
"If something had gone seriously wrong with the procedure, whether in the initiation of the injunction proceedings or in any other way, it was difficult to see why the County Court judge could not properly take it into account in the exercise of his discretion to grant or refuse the injunction."
But a defendant seeking to resist the grant of an injunction is not restricted to reliance on grounds which would found an application for judicial review.
28. The court's power to grant an injunction under section 187B is a discretionary power. The permissive "may" in subsection (2) applies not only to the terms of any injunction the court may grant but also to the decision whether it should grant any injunction. It is indeed inherent in the concept of an injunction in English law that it is a remedy that the court may but need not grant, depending on its judgment of all the circumstances. Underpinning the court's jurisdiction to grant an injunction is section 37(1) of the Supreme Court Act 1981, conferring power to do so "in all cases in which it appears to the court to be just and convenient to do so". Thus the court is not obliged to grant an injunction because a local authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction and so makes application to the court. … .
29. The court's discretion to grant or withhold relief is not however unfettered (and by quoting the word "absolute" from the 1989 circular in paragraph 41 of his judgment Simon Brown LJ cannot have intended to suggest that it was). The discretion of the court under section 187B, like every other judicial discretion, must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion should be exercised in favour of granting an injunction from those in which it should not. 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 (City of London Corporation v Bovis Construction Ltd ), that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant.
30. As shown above the 1990 Act, like its predecessors, allocates the control of development of land to democratically-accountable bodies, local planning authorities and the Secretary of State. Issues of planning policy and judgment are within their exclusive purview. As Lord Scarman pointed out in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment , "Parliament has provided a comprehensive code of planning control". In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions the limited role of the court in the planning field is made very clear. An application by a local planning authority under section 187B is not an invitation to the court to exercise functions allocated elsewhere. Thus it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or (as in Hambleton) that a local authority should have had different spending priorities. But the court is not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show. But all will depend on the particular facts, and the court must always, of course, act on evidence.
31. In Westminster City Council v Great Portland Estates plc Lord Scarman drew attention to the relevance to planning decisions, on occasion, of personal considerations:
"Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. … ."
Ouseley J made the same point more recently in Basildon District Council v, an appeal under section 288 of the 1990 Act, The Secretary of State for the Environment, Transport and the Regions when he said in paragraph 33 of his judgment:
"From that analysis I conclude, first, that quite apart from any considerations of common humanity, the needs of these particular gypsy families were a material consideration because they had a need for this development in this location. Those personal circumstances entitled the Secretary of State to have regard to them as relevant to the decision he had to make in the public interest about the use of the land for the stationing of residential caravans. … ."
Thus the Secretary of State was entitled to have regard to the personal circumstances of the Gypsies, as he did in the cases of Mr Berry and Mrs Porter. When application is made to the court under section 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 nonetheless 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, … .
32. When granting an injunction the court does not contemplate that it will be disobeyed: In re Liddell's Settlement Trusts; Castanho v Brown & Root (UK) Ltd. Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate: there is not one law for the law-abiding and another for the lawless and truculent. When making an order, the court should ordinarily be willing to enforce it if necessary. The rule of law is not well served if orders are made and disobeyed with impunity. These propositions however rest on the assumption that the order made by the court is just in all the circumstances and one with which the defendant can and reasonably ought to comply, an assumption which ordinarily applies both when the order is made and when the time for enforcement arises. Since a severe financial penalty may be imposed for failure to comply with an enforcement notice, the main additional sanction provided by the grant of an injunction is that of imprisonment. The court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment. But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply. … .
Article 8 of the European Convention on Human Rights
37. 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 the Human 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. …
38. The guidance given by the Court of Appeal in the judgment of Simon Brown LJ … was in my opinion judicious and accurate in all essential respects and I would endorse it."
- This is a convenient summary of the passages from these two significant judgments that are relevant to the facts of these claims:
(1) General principles
(1) The court's jurisdiction under section 187B is an original and not a supervisory jurisdiction. It has a discretionary power as to the granting of an injunction, the terms on which one is granted and as to whether it should be granted absolutely, as an interim measure or stayed and, if so, for how long.
(2) The power must be exercised judicially with due regard as to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. In all cases, the judge is not confined to a consideration of public law grounds for challenging an exercise by a public authority of its statutory powers but must decide whether in all the circumstances it is just to grant the relief sought against each defendant.
(2) Factors to take into account
(3) The judge is not entitled to reach his own independent view of the planning merits of these cases. However, the judge may take account of the possibility that a pending or prospective application for planning permission may succeed or that a previously unsuccessful planning application may yet succeed or that the local planning authority might itself come to reach a different planning judgment in the case.
(4) A particular concern for the judge will be the degree and flagrancy of the postulated breach of planning control, the extent of previous breaches of planning control, the nature and extent of previous planning decisions, any failure to take enforcement measures and the degree of urgency needed in order to prevent or minimise environmental or other damage.
(5) The judge should take account of whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.
(6) The judge will need to consider all relevant personal circumstances of the occupiers including any particular hardship that they would be caused, any interference with their personal and private lives, health or education, the particular interests of affected children and the availability or loss of a home that would flow from the grant of an injunction.
(3) The decision-making process
(7) The judge should accord respect to the balance that the local planning authority has struck between the public and private interests involved but the relevance and weight of its 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.
(8) The effect of an injunction must be proportionate. In these cases, that involves a balancing of the public interest in protecting the environment and upholding the Green Belt and the relevant development plan and other applicable planning policies against the interests of the defendants in securing respect for their family and personal lives and the protection of their property rights. This exercise should be undertaken in a structured and articulated way so that an appropriate conclusion emerges.
(9) In deciding these cases, a judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of whatever order is made.
F. The injunction decision-making process: The Owens
- Introduction. I will apply the structured decision-making process outlined above to each of the defendants' cases in turn. I can and will treat Mr and Mrs Owens' cases as being identical with each other and will take their cases together. The decision-making process involves a consideration of each of these steps followed by a decision as to whether an injunction of any kind is just, proportionate and properly balances the competing interests involved. The following are the steps that should be addressed:
(2) The possibility of a changed planning decision.
(3) The planning history and perceived planning necessity.
(4) Temporary personal planning permission.
(5) The Owens' personal circumstances.
(6) Appropriate remedy.
(8) The overall exercise of discretion in relation to:
(i) Final injunctions;
(ii) Interim injunctions;
(iii) Injunctions (final or interim) limiting use to rest use on an occasional basis; or
(iv) Mandatory injunctions concerned with removal of residential use paraphernalia.
(1) The possibility of a changed planning decision
- Changed planning circumstances. Although this was not accepted by Mr David Groom, the NFDC's Development Control Manager, there have been two very significant planning considerations that have occurred since any of the planning decisions that are relied on which have a potentially significant effect on the permitted use that may be made of units 91 - 93. These are Policy SOP1 which it is intended should be included in NFDC's SDMDP and it is hoped will be adopted in September 2013 and the NPPF which took effect in March 2012. In summary, the potentially relevant features of these two documents are as follows:
(1) NPPF is intended to provide guidance for the content and reformulation of all local planning policies. It reaffirms the importance of the Green Belt including safeguarding the countryside from encroachment. However, the sections concerned with Green Belt policies relax the restrictions on the construction of new buildings in the Green Belt in four significant respects and in relation to the re-use of buildings in two significant respects relevant to the Merryfield Park site (including for this purpose units 91 – 93).
(2) SOP1 provides for a limited amount of development on the site within the framework of a site restoration plan with development limited to that needed to produce a financially viable scheme that would include a limited amount of residential accommodation including affordable housing. The necessary brief and plan should be developed by site owners and the local community and NFDC should be involved in its preparation. The built development should, if possible, be located on the eastern part of the site nearest to Bransgore, which is the part of the site where units 91 – 93 are located. The Owens and the Greenshields are, inevitably, with the co-owners, the owners referred to as being those who should develop and implement this proposal.
(3) It is also highly relevant that units 91 and 92 might now have acquired residential use and that unit 93 might now have acquired residential use on an occasional rest basis. It is also highly relevant that the Owens and the Greenshields are now freehold owners of their respective units. These recent developments mean that the new planning policies are highly relevant to, and could significantly affect, their ability to remain as residents in units 92 and 93 or in alternative newly built or converted accommodation on the site following the implementation of the proposed development plan.
(4) The reuse or rebuilding of units 92 and 93 in conformity with the proposed restoration plan or in conformity with the NPPF could be achieved so as to reduce the impact on the openness of the Green Belt from the impact created by those units since 1958.
(5) That process could therefore potentially provide long-term residential accommodation for the present owners at the same time as assisting in the implementation of SOP1 and the NPPF.
- Change of planning status. In view of the changed factors identified in the previous paragraph and the difficulties created by the EN and the LDC, it is possible that the Owens and the Greenshields could successfully apply to have the EN set aside (even if it currently applies to their units), the LDC set aside (as being both inaccurate and unenforceable) and for a LDC for units 92 and 93 which reflect their use for residential or rest use purposes and could also successfully apply for planning permission on a permanent or temporary basis for the residential use of units 92 and 93, particularly since that use would not require any significant refurbishment, reinstatement or rebuilding.
(2) The planning history and perceived planning necessity
- Flagrant breach of planning control. Although the Owens are said by NFDC to be in flagrant breach of planning control, as this judgment shows, that view is neither self-evident nor clear cut. It is arguable that they are now occupying unit 92 with full lawful residential user or, alternatively, with rights of occasional rest-use residency. The contended for breaches of the EN and of the 2005 LDC may well be illusory. The convictions in the Magistrates' court were arguably erroneous on legal grounds, namely that they were based on the contention that the alleged residential use was a contravention of the EN when, on a true construction of the EN, it was clear that no such contravention had occurred. The planning appeal decision failed to take account of their possible entitlement to a temporary permission or fully to take account of their personal position and did not take account of the significant changes in relevant planning policies already referred to which had not been formulated at the time of the appeal. Finally, the Owens have no resources having acquired the freehold of unit 92 having been assured by the co-owners that their intended use of the free-hold was lawful and NFDC is unable or unwilling to provide them with an affordable home or rented accommodation suitable for their needs and resources. It is for those reasons that they have not complied with the informal and frequent requests for them to vacate unit 92.
- Previous planning decisions. The previous planning decisions relied on by NFDC are, to put the position somewhat mildly, unreliable and potentially capable of being withdrawn or replaced either by NFDC or on appeal. This particularly applies to the EN, the 2005 LDC and the decision refusing Mrs Owen retrospective change of user which is no longer relevant in view of the subsequent changes to the applicable planning regime. It is also in issue as to whether proper or full consideration and effect was given to Circular 18/84.
- Failure to take enforcement measures. The Owens' breach of planning control first occurred in August 2006 and, even now, no enforcement action has been taken against them - on the potentially erroneous grounds that their breach was covered by the EN. Even if it was, there is no reasonable explanation provided as to why a second enforcement notice was not served against them which would have enabled the difficulties with the first notice and with the wording of the LDC and with the possibility of obtaining temporary permission.
- Urgency. In view of the changing nature of the planning regime at Merryfield Park, the suggested need for urgency to preserve the openness of the Green Belt is not made out. Unit 92 has been in place in the Green Belt since 1958 and the suggested intensification of use or interference with the openness of the Green Belt appears to be overstated in the context of Merryfield Park as a whole. Moreover, given the Owens' ownership of unit 92 and the need for them to participate in the discussions about the future of the site, and their unit's possible acquisition of residential user, the suggested urgency is not made out.
(3) Temporary personal planning permission
- The inspector in the 2011 appeal did not, as she should have done, consider whether it would be appropriate to grant a temporary or time-limited condition with or without a restriction of use to the present occupiers of units 92 and 93. Such a condition is now much more appropriate than it was in 2011 since the harm occasioned by use as a residence pending the redevelopment of the site is not significant. The units have been on the site now for over 50 years and had been there for several years before the site became subject to Green Belt policies in 1958. Until the future use of the site has been settled following the adoption of the SDMDP and the implementation of SOP1 in conjunction with the application of the NPPF, consideration will have to be given to the temporary residential use of unit 92. This would seem to be in keeping with NPPF Green Belt policies since otherwise, during the interim whilst the long-term future of the site is being planned, they would again become empty units in an abandoned and possibly derelict and vandalised state. A further reason why this temporary use needs to be considered is that these two units are adjacent to unit 91 which is already, in reality, in residential use and the three units form a small cluster on the extreme eastern edge of the site.
- It is for these reasons that both the Owens could contend that if they are not permitted to use their unit on a permanent basis for residential purposes, that part of the guidance in Circular 11/95 concerned with temporary permissions when read in conjunction with the NPPF, is particularly apposite to their situation:
" Temporary Permissions
108. Section 72(1)(b) of the Act gives power to impose conditions requiring that a use be discontinued or that buildings or works be removed at the end of a specified period …
Principles applying to temporary permissions
… in deciding whether a temporary permission is appropriate, three main factors should be taken into account. First, it will rarely be necessary to give a temporary permission to an applicant who wishes to carry out development which conforms with the provisions of the development plan. Next, it is undesirable to impose a condition requiring the demolition after a stated period of a building that is clearly intended to be permanent. Lastly, the material considerations to which regard must be had in granting any permission are not limited or made different by a decision to make the permission a temporary one. … These considerations will mean that a temporary permission will normally only be appropriate either where the applicant proposes temporary development, or when a trial run is needed in order to assess the effect of the development on the area.
Short-term buildings or uses
Where a proposal relates to a building or use which the applicant is expected to retain or continue only for a limited period, whether because they have specifically volunteered that intention, or because it is expected that the planning circumstances will change in a particular way at the end of that period, then a temporary permission may be justified. For example, permission might reasonably be granted on an application for the erection of a temporary building to last seven years on land which will be required for road improvements eight or more years hence, although an application to erect a permanent building on the land would normally be refused." 
- I have highlighted the particularly apposite passages from this guidance. These suggest that the Owens have a strong case for consideration for a temporary time-limited permission for change of user to residential user limited to the projected date when the relevant policies have been implemented and the consequent restoration plan has been discussed, formulated, adopted and implemented.
- It follows that the Owens have not had, as they should have had, any consideration of their apparently strong case for a temporary permission to last for the period needed to develop and then implement the proposed restoration plan for the site.
(4) The Owens' personal circumstances.
- The Owens personal circumstances are set out above. A summary of these circumstances, as contended for by them, is that they acquired unit 92 in 2006 on the understanding that it could be used for rest purposes on an occasional basis. They had a search made of NFDC's register of enforcement notices but found no entry related to unit 92. It was conceded at the hearing that there was no such entry. It follows that, on becoming owners of the site, the Owens had no knowledge of the EN and that there is no evidence that that lack of knowledge was unreasonable. The Owens have no capital or financial resources save what is locked up in the value of unit 92. It was reasonable for the Owens to use unit 92 as their home from 2007 since this was necessary in order for them to care for Mrs Owen's elderly and infirm mother. Soon after her death in 2011, Mr Owen, who is elderly, started to suffer from a stress-related illness and the Owens reasonably needed to continue to reside for appreciable periods of time, as a rest from their caravan in Cornwall where they also reside, in unit 92. NFDC is unable, or unwilling, to provide suitable alternative accommodation for them if they leave unit 92 and it may take several years or more for them to be granted an affordable home given the lengthy waiting list for such homes in the NFDC area.
- These circumstances were not fully discussed in the inspector's decision letter dismissing Mrs Owen's appeal in 2011. The procedure adopted for the appeal was the written procedure and it may well be that these circumstances were not set out fully by Mrs Owen in her submissions. However, the inspector has the power, which should be exercised in appropriate cases, to seek further information in order to address any article 8 issues apparent from the appellant's submissions and, in cases involving the potential loss of a home, particularly one owned by the appellant, article 8 issues invariably arise. In any case, a court hearing an injunction application must itself consider any article 8 issue that arises and is not precluded or foreclosed from considering and, if necessary, refusing relief because of those personal issues.
- It is doubtful whether the Owen's personal circumstances would be sufficient to displace the application of enforcement measures, albeit that article 8 is engaged if two related factors were not present. These are, firstly, the change in circumstances arising from the potentially more relaxed development environment existing on the Merryfield Park site and, secondly, the failure of both NFDC and the appeal inspector to consider granting the Owens a temporary permission for a period equal to the anticipated period of time that will be needed to conclude and implement a site restoration plan. Although the inspector found that residential use of unit 92 would intensify the encroachment into the protected openness of the Green Belt, the marginal increase in such intensification on a site which has always encroached into that openness in the 50 years or more of its existence is readily balanced by the advantage to the Owens of a number of years of further use of their home whilst the long-term future of the site is being planned and implemented.
(5) Appropriate remedy.
- NFDC's approach to the enforcement issue. NFDC considered the proportionality and fairness of seeking an injunction with some care. Unfortunately, that consideration failed to take into account many of the factors identified in this judgment. No consideration was given to the possibility that the EN had not been contravened because unit 92 was not covered by it or to the possibility that the LDC was unenforceable or that it provided for the type of user, residential rest on an occasional basis, that the Owens contend was their alternative user if they had not obtained immunity from enforcement of a full residential user. Furthermore, no consideration had been given to the possibility of a temporary permission or to the potentially highly significant changes in policy which, when implemented, might allow the Owens to remain in residential use in either unit 92 or in a newly constructed affordable-type home on the site as an alternative. Further, no consideration was given to the fact that the Owens now own unit 92 or to their full personal circumstances. It follows that little weight can be given to NFDC's decision that it was necessary on planning grounds to seek the injunction since it failed to consider adequately the material considerations or the proportionality of seeking and obtaining injunctions.
- Appropriate remedy. The Owens contended that it was an abuse of process to seek an injunction because NFDC had waited for six years to seek it and had failed to take account of their circumstances and what they contended was the unreasonableness of seeking to turn them off a site that they owned and which had been an encroachment into the Green Belt for so long, particularly given the extensive residential user by the co-owners of several large units on the site. I accept that all these matters are factors which must be weighed up and balanced in the decision-making exercise that I am concerned with in deciding whether to grant injunctive relief but they are not anywhere near to identifying such egregious conduct by NFDC as to warrant my striking out the applications on the grounds of abuse of process.
- It is, however, necessary to consider whether injunctive relief is appropriate in the Owens' cases given the significant number of unresolved planning issues that their cases throw up. These issues include the question of whether the EN is applicable to them, whether the LDC is enforceable and as to its meaning and effect so far as the use that may be made of unit 92, whether planning permission, permanent or temporary, should be granted for residential use, whether the Owens are entitled to a LDC which identifies residential user as the permitted use of that particular planning unit and whether that part of the site should be developed as part of the implementation of a site restoration plan. Finally, and over-riding all these issues, whether NFDC should proceed by way of enforcement proceedings with, if necessary, the ability of the Owens to appeal and raise all the issues I have identified for consideration in that enforcement appeal. These are all powerful reasons for refusing injunctive relief as being an inappropriate remedy to resolve these various planning issues.
- In relation to the article 8 issues, there is clearly a significant issue of proportionality. If the Owens might be susceptible to injunctive relief granted to NFDC, the question arises as to whether it is proportionate to displace them at this time from their home. There is an overwhelming case for deciding that it is disproportionate since they have arguable defences to such relief, alternative remedies are readily available, temporary permission is also an apparently appropriate remedy and the harm sought to be protected by NFDC is marginal compared to the interference with the respect for the Owens' family and private lives and their property that would be involved in displacing them.
(7) The overall exercise of discretion
(i) Final injunctions
- The case for final injunctions has not been made out. NFDC does not demonstrate a high probability of succeeding in obtaining final injunctions without a full trial of all the issues raised by the Owens.
(ii) Interim injunctions
- Equally, the case for interim injunctions has not been made out. The balance of convenience is overwhelmingly in favour of maintaining the status quo.
(iii) Injunctions (final or interim) limiting the use of unit 92 to rest use on an occasional basis
- A limited injunction, whether final or interim, granted on the basis that the Owens have actual or arguable rights to rest use of unit 92 which they are abusing by using that unit for full residential use would not be appropriate. This is because the limits of that potential user have never been identified save on the basis of what is reasonable and it would involve the court in supervising and possibly enforcing an injunction in unduly imprecise terms. Moreover, there is, at present, insufficient evidence to show that such an injunction is necessary or that the current user infringes this limited type of residential use that would be the subject of the injunction if granted.
(iv) Mandatory injunctions concerned with removal of residential use paraphernalia
- Even if final or interim injunctions prohibiting residential use of unit 92 had been appropriate, a mandatory injunction requiring the removal and destruction of so-called residential paraphernalia would not be appropriate. The Owens own unit 92 and their storage or placement of such paraphernalia in that unit is lawful. The external items, such as a garden fence, parking of a car and garden ornaments or even a washing line, are all permitted on the Merryfield Park site and are, in consequence, lawfully placed on the unit 92 site even if no residential use is permitted of that unit. Furthermore, any intensification of what is permitted, for example the parking of a number of cars, a caravan or the dumping of old cars, is not shown on the evidence to be a significant possibility. Thus, a mandatory injunction in any form is not warranted at this stage.
- Injunctive relief is refused on the basis both that it is an inappropriate remedy at present and because the basis for it being granted summarily or on an interim basis in any form has not been made out.
G. The injunction decision-making process: The Greenshields
- Introduction. The different circumstances of the Greenshields involves a modified decision-making process from that used in the case of the Owens. However, that process is sufficiently similar that I can undertake the same structured process adopting that process with the modifications that I will now set out.
(1) The possibility of a changed planning decision
- Exactly the same considerations apply to the Greenshields as are set out above for the Owens.
(2) The planning history and perceived planning necessity
- Flagrant breach of planning control. Although the Greenshields are said by NFDC to be in flagrant breach of planning control, as this judgment shows, that view is neither self-evident nor clear cut. It is arguable that they are now occupying unit 93 lawfully, or subject to a lawful user, namely with rights of occasional rest-use residency or even, depending on the facts relating to the initial conversion of the unit and its timing, with full residential rights. The contended for breaches of the EN and of the 2005 LDC may well be illusory. Finally, the Greenshields contend that they have no resources having acquired the freehold of unit 93 having been assured by the co-owners that their intended use of the freehold was lawful and NFDC is unable or unwilling to provide them with an affordable home or rented accommodation suitable for their needs and resources. It is for those reasons that they have not complied with the informal and frequent requests for them to vacate unit 93.
- Previous planning decisions. The previous planning decisions relied on by NFDC are, to put the position somewhat mildly, unreliable and potentially capable of being withdrawn or replaced either by NFDC or on appeal. This particularly applies to the EN and the 2005. It is also in issue as to whether proper or full consideration and effect was given to Circular 18/84.
- Failure to take enforcement measures. The Greenshields' breach of planning control first occurred in February 2011 and, even now, no enforcement action has been taken against them - on the potentially erroneous grounds that their breach was covered by the EN. Even if it was, there is no reasonable explanation provided as to why a second enforcement notice was not served against them which would have enabled the difficulties with the first notice and with the wording of the LDC and with the possibility of obtaining temporary permission to be addressed and resolved by way of a planning decision.
- Urgency. In view of the changing nature of the planning regime at Merryfield Park, the suggested need for urgency to preserve the openness of the Green Belt is not made out. Unit 93 has been in place in the Green Belt since 1958 and the suggested intensification of use or interference with the openness of the Green Belt appears to be overstated in the context of Merryfield Park as a whole. Moreover, given the Greenshields' ownership of unit 93 and the need for them to participate in the discussions about the future of the site, and their unit's possible acquisition of residential user, the suggested urgency is not made out.
(3) Temporary personal planning permission
- The inspector in the 2011 appeal did not, as she should have done, consider whether it would be appropriate to grant a temporary or time-limited condition with or without a restriction of use to the present occupiers of unit 92 which, if granted, would inevitably have been granted by NFDC or an inspector on appeal to the occupiers of unit 93 as well. Such a condition is now much more appropriate than it was in 2011 since the harm occasioned by use as a residence pending the redevelopment of the site is not significant. The units have been on the site now for over 50 years and had been there for several years before the site became subject to Green Belt policies in 1958. Until the future use of the site has been settled following the adoption of the SDMDP and the implementation of SOP1 in conjunction with the application of the NPPF, consideration will have to be given to the temporary residential use of unit 93. This would seem to be in keeping with NPPF Green Belt policies since otherwise, during the interim whilst the long-term future of the site is being planned, they would again become empty units in an abandoned and possibly derelict and vandalised state. A further reason why this temporary use needs to be considered is that these two units are adjacent to unit 91 which is already, in reality, in residential use and the three units form a small and potentially discrete cluster on the extreme eastern edge of the site.
- It is for these reasons that both the Greenshields could contend that if they are not permitted to use their unit on a permanent basis for residential purposes, that part of the guidance in Circular 11/95 concerned with temporary permissions when read in conjunction with the NPPF, is particularly apposite to their situation.
- This guidance suggests that the Greenshields have a strong case for consideration for a temporary time-limited permission for change of user to residential user limited to the projected date when the relevant policies have been implemented and the consequent restoration plan has been discussed, formulated, adopted and implemented. It follows that the Owens have not had, as they should have had, any consideration of their apparently strong case for a temporary permission to last for the period needed to develop and then implement the proposed restoration plan for the site.
(4) The Greenshields' personal circumstances.
- The Greenshields' personal circumstances are set out above. A summary of these circumstances, as contended for by them, is that they acquired unit 93 in 2011 on the understanding that it could be used for residential rest purposes on an occasional basis. They had had a search made of NFDC's register of enforcement notices but found no entry related to unit 93. It was conceded at the hearing that there was no such entry. It follows that, on becoming owners of the site, the Greenshields had no knowledge of the EN and that there is no evidence that that lack of knowledge was unreasonable. The Greenshields have no capital or financial resources save what is locked up in the value of unit 93. It was reasonable for the Greenshields to use unit 93 as their home from March 2011 since they initially rented it at a full market rent.
- Mrs Greenshields bought the freehold in an arm's length transaction at a market value on the understanding conveyed to them by the co-owners, being the co-owners' understanding of the planning user position, that the unit could be used as a residential rest-use on an occasional basis on visits back to the UK from their extensive visits to Spain to stay with friends and family members. That is the current nature of their use of Unit 93 and NFDC has not adduced sufficient evidence to show that their occupation is more extensive than that and extends to full residential use.
- They also contend that NFDC is unable, or unwilling, to provide suitable alternative accommodation for them if they leave unit 93 and it may take several years or more for them to be granted an affordable home given the lengthy waiting list for such homes in the NFDC area.
- These circumstances were not fully considered by NFDC when deciding whether to apply for injunctive relief. A court hearing an injunction application must itself consider any article 8 issue that arises and is not precluded or foreclosed from considering and, if necessary, refusing relief because of those personal issues.
- It is doubtful whether the Greenshields' personal circumstances would be sufficient to displace the application of enforcement measures, albeit that article 8 is engaged, if two related factors were not present. These are, firstly, the change in circumstances arising from the potentially more relaxed development environment existing on the Merryfield Park site and, secondly, the failure of NFDC to consider granting the Greenshields a temporary permission for a period equal to the anticipated period of time that will be needed to conclude and implement a site restoration plan. Although NFDC considered that the Greenshields' residential use of unit 93 would intensify the encroachment into the protected openness of the Green Belt, the marginal increase in such intensification on a site which has always encroached into that openness in the 50 years or more of its existence is readily balanced by the advantage to the Greenshields of a number of years of further use of their home whilst the long-term future of the site is being planned and implemented.
(5) Appropriate remedy.
- NFDC's approach to the enforcement issue. NFDC considered the proportionality and fairness of seeking an injunction with some care. Unfortunately, that consideration failed to take into account many of the factors identified in this judgment. No consideration was given to the possibility that the EN had not been contravened because unit 93 was not covered by it or to the possibility that the LDC was unenforceable or that it provided for the type of user, residential rest on an occasional basis, that the Greenshields contend was their alternative user if they had not obtained immunity from enforcement of a full residential user. Furthermore, no consideration had been given to the possibility of a temporary permission or to the potentially highly significant changes in policy which, when implemented, might allow the Greenshields to remain in residential use in either unit 93 or in a newly constructed affordable-type home on the site as an alternative. Further, no consideration was given to the fact that the Greenshields now own unit 93 or to their full personal circumstances. As a final consideration, it might now be appropriate to consider granting permission to unit 93 for full residential use if, as is possible, the other two units in what is in effect an enclave on the edge of the Merryfield site already ear-marked for possible residential development have now acquired residential by being immune from enforcement for that use. It follows that little weight can be given to NFDC's decision that it was necessary on planning grounds to seek the injunction since it failed to consider adequately the material considerations or the proportionality of seeking and obtaining injunctions.
- Appropriate remedy. The Greenshields contended that it was an abuse of process to seek an injunction because NFDC had waited for six years to seek it and had failed to take account of their circumstances and what they contended was the unreasonableness of seeking to turn them off a site that they owned and which had been an encroachment into the Green Belt for so long, particularly given the extensive residential user by the co-owners of several large units on the site. I accept that all these matters are factors which must be weighed up and balanced in the decision-making exercise that I am concerned with in deciding whether to grant injunctive relief but they are not anywhere near to identifying such egregious conduct by NFDC as to warrant my striking out the applications on the grounds of abuse of process.
- It is, however, necessary to consider whether injunctive relief is appropriate in the Greenshields' cases given the significant number of unresolved planning issues that their cases throw up. These issues include the question of whether the EN is applicable to them, whether the LDC is enforceable and as to its meaning and effect so far as the use that may be made of unit 93, whether planning permission, permanent or temporary, should be granted for residential use, whether the Greenshields are entitled to a LDC which identifies residential user as the permitted use of that particular planning unit and whether that part of the site should be developed as part of the implementation of a site restoration plan. Finally, and over-riding all these issues, whether NFDC should proceed by way of enforcement proceedings with, if necessary, the ability of the Greenshields to appeal and raise all the issues I have identified for consideration in that enforcement appeal. These are all powerful reasons for refusing injunctive relief as being an inappropriate remedy to resolve these various planning issues.
- In relation to the article 8 issues, there is clearly a significant issue of proportionality. If the Greenshields might be susceptible to injunctive relief granted to NFDC, the question arises as to whether it is proportionate to displace them at this time from their home. There is an overwhelming case for deciding that it is disproportionate since they have arguable defences to such relief, alternative remedies are readily available, temporary permission is also an apparently appropriate remedy and the harm sought to be protected by NFDC is marginal compared to the interference with the respect for the Owens' family and private lives and their property that would be involved in displacing them.
(7) The overall exercise of discretion
(i) Final injunctions
- The case for final injunctions has not been made out. NFDC does not demonstrate a high probability of succeeding in obtaining final injunctions without a full trial of all the issues raised by the Greenshields.
(ii) Interim injunctions
- Equally, the case for interim injunctions has not been made out. The balance of convenience is overwhelmingly in favour of maintaining the status quo.
(iii) Injunctions (final or interim) limiting the use of unit 93 to rest use on an occasional basis
- A limited injunction, whether final or interim, granted on the basis that the Greenshields have actual or arguable rights to rest use of unit 93 which they are abusing by using that unit for full residential use would not be appropriate. This is because the limits of that potential user have never been identified save on the basis of what is reasonable and it would involve the court in supervising and possibly enforcing an injunction in unduly imprecise terms, Moreover, there is, at present, insufficient evidence to show that such an injunction is necessary or that the current user infringes this limited type of residential use that would be the subject of the injunction if granted.
(iv) Mandatory injunctions concerned with removal of residential use paraphernalia
- Even if final or interim injunctions prohibiting residential use of unit 93 had been appropriate, a mandatory injunction requiring the removal and destruction of so-called residential paraphernalia would not be appropriate. The Greenshields own unit 93 and their storage or placement of such paraphernalia in that unit is lawful. The external items, such as a garden fence, parking of a car and garden ornaments or even a washing line, are all permitted on the Merryfield Park site and are, in consequence, lawfully placed on the unit 93 site even if no residential use is permitted of that unit. Furthermore, any intensification of what is permitted, for example the parking of a number of cars, a caravan or the dumping of old cars, is not shown on the evidence to be a significant possibility. Thus, a mandatory injunction in any form is not warranted at this stage.
- Injunctive relief is refused on the basis both that it is an inappropriate remedy at present and because the basis for it being granted summarily or on an interim basis in any form has not been made out.
H. The injunction decision-making process: Mr Malem
- Introduction. When the claim was issued, NFDC were claiming injunctive relief from Mr Malem on the basis that he was unlawfully using unit 91 for residential purposes. Further evidence was submitted on behalf of Mr Malem in the interval between the first and second days of the hearing which showed that Mr Malem was now occupying unit 91 as an adjunct to his employment as a night watchman of Merryfield Park and that the ownership of that unit had recently reverted to the co-owners. NFDC is now claiming an interim injunction to restrain Mr Malem from any user that is not ancillary to his employment by Merryfield Park.
- The remaining relief now claimed from Mr Malem requires it to be considered whether Mr Malem was as a matter of law occupying unit 91 between December 2005 and August 2012 for residential purposes since, between those dates, he was not capable of occupying it as an ancillary use to its planning use as defined in the LDC since the unit was owned by Mr Biddlecombe. If Mr Malem was occupying unit 91 between those dates unlawfully for residential purposes, it is arguable that that use may no longer be enforced against since it may have been a use that was not subject to the EN and it therefore became immune from enforcement in December 2009, four years after Mr Malem went into occupation of the unit. If so, that immunity may have survived the reversion of the ownership of unit 91 to the co-owners in August 2013 since there is no evidence that that residential use was abandoned or that the contractual arrangements under his contract of employment were anything more than personal and private arrangements between him and the co-owners which had no bearing or effect on the residential use that, on this basis, has acquired immunity from enforcement.
- Conclusion. Injunctive relief is refused. There is no basis for granting it based on current unlawful use, as is conceded by NFDC. There is also no basis for granting it to prevent threatened future unlawful use since Mr Malem has a good arguable case that he is using unit 91 lawfully as his residence and, in any event, there is no evidence that he is threatening to use it unlawfully in the future.
I. Procedural way forward
- There are three alternatives for the future of these claims. Firstly, they could be dismissed and NFDC left to pursue alternative remedies if so minded. Secondly, they could be stayed and left to NFDC to apply to lift the stay in the future if circumstances then warranted it. Thirdly, they could continue to trial having been converted from Part 8 claims to Part 7 claims. In that event, the defendants should first serve defences and the claims should then be referred to the Master for case management and cost budgeting under the new procedural reforms that take effect on 1 April 2013. If the parties can agree the wording of an order, there will be no need for attendance at the handing down and the agreed order will be made. The parties should inform the court of the contents of any agreed order and of what they contend that the order should contain if there is no agreed order by an email to the judge's clerk and the other parties at least 48 hours before the handing down.
K. Overall conclusion
- The application against all defendants is dismissed.
HH Judge Anthony Thornton QC
Issues dealt with in Part E of the judgment
(1) Did the EN refer to the whole of Merryfield or only to units 15 and 30 (paragraphs 87 – 92 & 94 – 108)?
(2) If the EN referred to the entire Merryfield Park, did section 181 of the TCPA to units 91 - 93 once they became separate planning units (paragraphs 109 – 112)?
(3) If the EN did not apply to units 91 – 93, are those units now in breach of planning control (paragraphs 113 – 119)?
(2) Planning use
(4) What is the use identified by the LDC for units 91 – 93 in terms of the nature and frequency of use (paragraphs 120 – 126 & 128 – 141)?
(5) Is the LDC enforceable (paragraphs 142 - 143)?
(6) What is the current enforceable lawful use of units 91 – 93 (paragraphs 144 – 147)?
(7) Are the defendants currently using units 91 – 93 unlawfully and, if so, what is the breach (paragraphs 148 – 151)?
(3) Previous enforcement action
(8) Do the convictions of the Owens and Mr Malem in have an adverse effect on their defences to the claims for injunctions?
(9) Does the rejection of Mrs Owen's planning appeal have an adverse effect on the Owens' defences to the claims for injunctions (paragraphs 154 – 160)?
(10) Do the attempts of the NFDC to persuade the defendants to stop using units 91 – 93 as a residential use have an adverse effect on their defences to the claims for injunctions (paragraphs 165j – 167)?
(4) Grant of injunctions – general principles
(11) What are the general principles governing the issue of a section 187B injunction (paragraphs 168 – 171)?