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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 350 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHESHIRE EAST BOROUGH COUNCIL
(1) MR MICHAEL MALONEY
(2) MRS SHEILA MALONEY
(3) MR MICHAEL MALONEY SENIOR
(4) MS BRIDGET MALONEY
(5) MS HELEN LISA MALONEY
(6) PERSONS UNKNOWN DEPOSITING HARDCORE, BRINGING CARAVANS AND RESIDENTIALLY OCCUPYING THE LAND ON THE SOUTH SIDE OF BROADOAK LANE, MOBBERLEY, KNUTSFORD, CHESHIRE
(7) TOTAL PLANT HIRE
(8) MR THOMAS HALIGAN
(9) W DOHERTY & SONS LTD
(10) MR PAUL RENNIE
(11) MR GLYN PARR
(12) MR ADRIAN DRAPER
Mr Timothy Jones (instructed by Community Law Partnership) for the Defendant
Hearing dates: Tuesday 9 February, Wednesday 10 February and Thursday 11 February 2021
Crown Copyright ©
The Hon. Mr Justice Turner:
CONTEMPT OF COURT
"A person is guilty of contempt by breach of a court order only if all the following factors are proved to the criminal standard of proof: (a) having received notice of the order (being an unambiguous order) the contemnor did an act prohibited by the order or failed to do an act required by the order within the time set by the order; (b) he intended to do the act or failed to do the act as the case may be; (c) he had knowledge of all the facts which would make the carrying out of the prohibited act or the omission to do the required act a breach of the order (FW Farnsworth Ltd v Lacy  EWHC 3487 (Ch), (Proudman J), at para.20). Further, the act constituting the breach must be deliberate rather than merely inadvertent, but an intention to commit a breach is not necessary, although intention or lack of intention to flout the court order is relevant to penalty (ibid)."
"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.
(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."
"38. I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J. suggested was the case in the pre-1998Act 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 art.8(2) questions as to necessity and proportionality.
40.Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.
41.True it is, as Mr. McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate'—in today's language, proportionate. The approach in the Hambleton case  3 P.L.R. 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under 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."
"On the basis of the foregoing review of the authorities, I would summarise the main principles which should guide the court in the exercise of its discretion as follows:
(1) If the court finds that there have been breaches of the duty of full and fair disclosure on the ex parte application, the general rule is that it should discharge the order obtained in breach and refuse to renew the order until trial.
(2) Notwithstanding that general rule, the court has jurisdiction to continue or re- grant the order.
(3) That jurisdiction should be exercised sparingly, and should take account of the need to protect the administration of justice and uphold the public interest in requiring full and fair disclosure.
(4) The court should assess the degree and extent of the culpability with regard to non-disclosure. It is relevant that the breach was innocent, but there is no general rule that an innocent breach will not attract the sanction of discharge of the order. Equally, there is no general rule that a deliberate breach will attract that sanction.
(5) The court should assess the importance and significance to the outcome of the application for an injunction of the matters which were not disclosed to the court. In making this assessment, the fact that the judge might have made the order anyway is of little if any importance.
(6) The court can weigh the merits of the plaintiff's claim, but should not conduct a simple balancing exercise in which the strength of the plaintiff's case is allowed to undermine the policy objective of the principle.
(7) The application of the principle should not be carried to extreme lengths or be allowed to become the instrument of injustice.
(8) The jurisdiction is penal in nature and the court should therefore have regard to the proportionality between the punishment and the offence.
(9) There are no hard and fast rules as to whether the discretion to continue or re- grant the order should be exercised, and the court should take into account all relevant circumstances."
"1. Until further order, the Defendants shall not (whether by themselves or encouraging or allowing another) undertake any developments as defined by section 55 of the Town and Country Planning Act 1990 on the Land (as defined by para 2 below) without the grant of planning permission or the written consent of the Claimant's solicitor. For the avoidance of doubt, the Defendants are forbidden from:
(a) Importing or depositing any material;
(b) Excavating or altering ground levels;
(c) Laying down further hardstanding/hardcore;
(d) Erecting any building/structure
(e) Siting any caravans/mobile homes (For the avoidance of doubt, if a caravan which was on the Land at the time of the service of this order is removed it may not be replaced with another;
(f) Allowing any further residential use (For the avoidance of doubt, nobody else may live on the Land who was not doing so at the time of the service of this order).
2. The land referred to in this order is the Land on the south side of the Broadoak Lane, Mobberley, Knutsford, Cheshire as delineated in red on the attached plan.
3. For the avoidance of doubt, if a person claims that they were unaware of the terms of this order when they breached it, they must remedy the breach within 4 hours of being informed of the terms of the order. Otherwise they shall be in contempt of Court.
4. To effect service the Claimant shall personally serve the first Defendant with a copy of this order together with the application, claim form and evidence in support, place a copy of the order on its website and affix a copy of this order contained in a transparent weatherproof envelope on each of the caravans on the Land and at a prominent position at the entrance to the Land so that it comes to the attention of any visitors.
5. Any person who is presently living on the land and who wishes to identify him or herself to be joined as a named Defendant to the proceedings may apply to the Court on 24 hours written notice to the Court and the Claimant."
"1. Until further order, the Defendants shall not (whether by himself or encouraging or allowing another) undertake any development as defined by section 55 of the Town and Country Planning Act 1990 on the Land (as defined by para 3 below) without the grant of planning permission or the written consent of the Claimant's solicitor. For the avoidance of doubt, the Defendants are forbidden from:
a) Importing or depositing any material;
b) Excavating or altering ground levels;
c) Laying down further hardstanding/hardcore;
d) Erecting any building/structure
a) No more than 13 caravans may be on the Land at any one time
b) Only those persons listed in the attached schedule may live on the Land and nobody else may do so.
c) The land referred to in this order is the Land on the south side of the Broadoak Lane, Mobberley, Knutsford, Cheshire as delineated in red on the attached plan.
d) For the avoidance of doubt, if a person claims that they were unaware of the terms of this order when they breached it, they must remedy the breach within 4 hours of being informed of the terms of the order. Otherwise they shall be in contempt of Court."
THE ALLEGATIONS OF CONTEMPT
Order of Farby J
They disobeyed para 1 of the injunction in that they continued (whether by themselves or encouraging or allowing another) to import/deposit material, alter ground levels and lay down further hardstanding/hardcore after the service of the injunction on the afternoon of 13 August 2020 contrary to sub-paras a, b & c. The allegation is made on the basis of the activity undertaken (including the deposit and spreading of material on the Land) after service of the injunction on the afternoon of 13 August 2020.
They disobeyed para 3 of the injunction in that they failed to remedy the aforementioned breach (in respect of allegation 1 above) within 4 hours of being informed of the terms of the order on the afternoon of 13 August 2020. To date, no effort has been made to remedy the breach.
They disobeyed para 1 (e) of the injunction in that they sited additional caravans on the Land after the service of the order. There were 6 caravans when the injunction was served on the afternoon of the 13 August. The following day there were 10 on the land.
They disobeyed para 3 of the injunction in that they failed to remedy the aforementioned breach by removing the "new" caravans within 4 hours of being informed of the terms of the order on the afternoon of 13 August 2020 or the following day. To date, no effort has been made to remedy the breach.
They disobeyed para 1 (e) of the injunction in that they sited additional caravans on the Land after a site visit by officers on 13th August when they were served with the order and told not to site any further caravans. There were 8 caravans when the injunction was served on the afternoon of the 13th August. On 17th August there were 10 caravans on the Land.
They disobeyed para 1 (e) of the injunction in that they sited additional caravans on the Land after a site visit by officers on 13th August when they were served with the order and told not to site any further caravans. There were 8 caravans when the injunction was served on the afternoon of the 13th August. On 20th August, 11 caravans were observed.
They disobeyed para 1 (e) of the injunction in that they sited additional caravans on the Land after the site visit by officers on 13th August when they were served with the order and told not to site any further caravans. There were 8 caravans when the injunction was served on the afternoon of the 13th August. On 24th August there were 12 caravans were observed.
They disobeyed para 3 of the injunction in that they failed to remedy the aforementioned breaches by removing the "new" caravans within 4 hours of being informed of the terms of the order on the afternoon of 13 August 2020 or the following day. To date, no effort has been made to remedy the breach.
ALLEGATIONS 10, 11 AND 12
He disobeyed para 1 sub-paras a & c of the order of Farby J dated 13 August 2020 in that he (whether by himself or encouraging, instructing or allowing another) imported/deposited material and laid down further hardcore at the gated access to the Land. The allegation is made out on the basis of the activity undertaken, namely the depositing of hardcore, between 26 August 2020 and the next site visit by officers on 28 August 2020. To date, no effect has been made to remedy the breach.
Order of Cockerill J
He disobeyed para 1 sub-paras a & c of the order of Cockerill J dated 1 September 2020 (amended on 2 September 2020) in that he (whether by himself or encouraging, instructing or allowing another) imported/deposited material and laid down further hardcore at the gated access to the land. The allegation is made out on the basis of the activity undertaken (including the deposit and spreading of material on the Land) was witnessed taking place on the Land on 23 September 2020. The next day, during a site visit, officers confirmed that fresh material had been deposited. To date, no effort has been made to remedy the breach.
He disobeyed para 1(d) of the order of Cockerill J dated 1 September 2020 (amended on 2 September 2020) in that he (whether by himself or encouraging, instructing or allowing another) erected 2 wooden sheds on the Land between 24 September 2020 and 16 October 2020. To date, no effort has been made to remedy the breach.
They disobeyed paragraph 2a of the injunction in that they sited an additional caravan or motorhome on the Land after service of the above mentioned order. There were 13 caravans when the injunction was served on the 3rd September 2020. On the 15th January 2021 an additional caravan or motorhome was sited on the Land.
CONCLUSION ON CONTEMPT
- One and two by Mr Maloney, his wife and four children;
- Three by Mr Maloney's sister, Lisa, and her child;
- Four by Bridget, Mr Maloney's mother;
- Five, Six and Seven by Mr Maloney's brother, Joe, with his wife and nine children;
- Eight by Mr Maloney's sister, Rose, and her husband and five children.
- Nine and ten by Mr Maloney's sister, Rose, and her husband and five children (in addition to caravan seven above);
- Eleven and twelve by Mr Maloney's sister, Theresa, and her husband and four children;
- Thirteen by Mr Maloney's sister Stephanie, her husband and five children.
"…that where a planning decision engaged a child's right to private and family life under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the child's best interests would be a primary consideration for the decision-maker, but that those interests, once identified, were not determinative of the planning issue; that, however, no other consideration was to be regarded as more important or to be given greater weight than the best interests of any child, merely by virtue of its inherent nature apart from the context of the individual case; that when examining all material considerations and making a planning judgment on the basis of the best interests of any child, the decision-maker had to keep those interests at the forefront of his mind and assess whether any adverse impact of any decision he might make on the interests of a child was proportionate; that whether the decision-maker had properly performed the exercise was a question of substance not form; that it was not necessary for the planning decision-maker, or inspector appointed to hold a public inquiry and make recommendations to the Secretary of State, to hear directly from children affected by the relevant decision, since their wishes and best interests would normally be conveyed sufficiently through evidence from other sources; that the decision- maker had to be equipped with sufficient evidence on which to make a proper assessment of the child's best interests, but where an applicant for planning permission was professionally represented the decision-maker was entitled to assume that the relevant evidence had been placed before him unless something showed the need for further investigation; and that it would not usually be necessary for the decision-maker to make his own inquiries as to evidence that might support the child's best interests."
CONCLUSION ON INJUNCTION