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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 2101 (QB)
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QUEEN'S BENCH DIVISION
High Street, Winchester, Hampshire SO23 9EL
B e f o r e :
(sitting as a Judge of the High Court)
| ASHFORD BOROUGH COUNCIL
|- and -
|David STEVENS (1)
Robert PIECZONKA (2)
Paige WILLIAMS (3)
John HEFFERMAN (4)
Susan HEFFERMAN (also known as Suzanne HEFFERMAN or Susan WILLIAMS) (5)
John WARD (6)
Edward MONGAN (7)
PERSONS UNKNOWN (8)
Stephen Cottle (instructed by Minton Morrill) for the Defendants
Hearing date: 14 June 2018
Crown Copyright ©
His Honour Judge Richard Parkes QC :
The Nature of the Dispute
Applications before the Court
Contempt of Court
Nature of the Land and Planning History
"(1)A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.
(2)For the purposes of the operation of this section in relation to any particular application for planning permission, a "pre-existing enforcement notice" is an enforcement notice issued before the application was received by the local planning authority."
"Cease the carrying out of any further building, engineering or other operations on the land, including (but not limited to) the erection of any buildings or structures, creation of any or any further roads, tracks, areas of hardstanding, fences, walls or other means of enclosure, creation or widening of accesses or digging of pits, gulleys or trenches to facilitate the provision or extension or improvements of services to the land."
i) the introduction of hardcore, and excavation of land;
ii) the laying and extending of hardstanding;
iii) the construction of a substantial roadway, 120m long and 4m wide from south to north through the site;
iv) the deposit of a large quantity of excavated material around the pond;
v) the erection of a timber building;
vi) the installation of at least two septic tanks; and,
vii) change in use of the land to residential occupation by one touring and five static caravans.
The Third Defendant's Application
Paige Williams' affidavits
Dr Robinson's report
"(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 Act.
(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.
(3) Rules of court may provide for such an injunction to be issued against a person whose identity is unknown.
(4) In this section 'the court' means the High Court or the county court."
i) s187B confers an original and discretionary jurisdiction to be exercised with due regard for the purpose for which it was conferred to restrain actual or threatened breaches of planning control;
ii) it is inherent in the remedy that its grant depends on the court's judgment of all the circumstances of the case;
iii) although the court will not examine matters of planning policy and judgment which lay within the exclusive purview of the planning authorities, it is not obliged to grant relief because a planning authority considers it necessary or expedient to restrain a planning breach; and,
iv) the court should have regard to all the circumstances of the case (including personal circumstances), is required by s6 Human Rights Act 1998 to act compatibly with Convention rights, and, having regard to Art.8 rights, will only grant an injunction where it is just and proportionate to do so.
"38. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.
39. Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.
40. Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
41. True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate'—in today's language, proportionate….. 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."
"25. In our judgment, the judge's decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the court in upholding the important principle that the orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the judge or to this court.
26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.
27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour a suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control."
i) planning issues (including whether the prospects of success are sufficiently strong to provide a factor of real weight weighing the balance in favour of granting a variation of the injunction pending the outcome of an appeal);
ii) the personal circumstances of the applicants, including their Art.8 rights and the best interests of any children; and,
iii) the overarching public interest in ensuring that court orders are respected and obeyed.
"A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant's personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in the South Bucks case and in the Mid-Bedfordshire case."