Tag Archive for 'planning'

Thoroughly premature planning injunction…

Published
by
NL
on 23/10/2009
in FLW case note, Housing law - All, Licences and occupiers and Possession
. 4 Comments

Brentwood Borough Council v Ball & Ors [2009] EWHC 2433 (QB)

This was the hearing of an application for an injunction by Brentwood BC. The defendants were six gypsies who had together purchased a plot of land, called Plot 3, in 2009. This was designated agricultural land in Brentwood’s area.

At the time of purchase, the plot was subject to two enforcement notices from 2001, one of which required the removal of all touring caravans from the site, the permanent cessation of the use of the site for residential purposes and reinstatement of the site to a condition suitable for agriculture. That notice had not been enforced by Brentwood in the time since 2001.

Before buying the land, the purchasers had consulted a planning consultant, who had advised them that, if planning permission for use as a residential caravan site was applied for, the most likely outcome was long term temporary permission.

After purchase and over a bank holiday weekend in April 2009, the Defendants and their families moved onto plot 3:

bringing some fourteen caravans and some 30-50 lorry loads of road planings and earth moving equipment which was used to create an encampment with a new continuous roadway laid down the middle of the site with six pitches, three on either side. Earth works were carried out to create an artificial bund or screening mound along parts of the northern and southern boundaries of the site and to level parts of the site. Timber panel and concrete fencing was erected both along the boundaries of the site and within the site dividing it into the six pitches.

It was common ground that this was in breach of the 2001 enforcement notice and without planning permission. After the holiday, Brentwood served enforcement notices and then issued the application for an injunction. On the same day an application for retrospective planning permission was made. This was refused in June 2009 and an appeal lodged by the Defendants, adjourned pending these proceedings.

The Defendants argued that:
i) there had been caravans on the site for many years without the Council seeking to enforce the notices.
ii) They had liaised with the Council in seeking a plot and had sought advice on potential planning permission
iii) They were seeking a long term site for family reasons and some had previously been forced to live in highly dangerous conditions
iv) there is a likelihood, and certainly no less than a real prospect, of their planning appeal being successful.

The Court summarised the guidance in South Bucks District Council v Porter [2003] 2AC 558 on the discretion under Section 187 B of the Town and Country Planning Act 1990 as follows:

(1) The principal purpose of the jurisdiction to grant an injunction under section 187 B is to promote compliance with planning law. The power exists above all to permit abuses to be curbed and urgent solutions provided where they are called for. There is an important public interest in securing compliance with and if necessary enforcement of planning law.

(2) An injunction is the most draconian measure available to promote that end. In the ordinary case, absent particular factors pointing to the need for immediate injunctive relief, it is available as a last resort when the other remedies of enforcement notice and prosecution have been tried and found wanting, or at least where there is good reason to believe that if deployed they will be of no effect. The granting of an injunction is more likely to be proportionate where that is the case than where it is not.

(3) The greater the adverse environmental impact of the breach or anticipated breach of planning law sought to be restrained, the greater will be the case for granting an injunction. The planning history of the site is likely to be a relevant factor.

(4) Before deciding to apply for an injunction under section 187 B, it is not sufficient for the local planning authority to conclude that it is the only means of preventing an actual or anticipated breach of planning law. It is in addition necessary for it to consider fully whether there are any countervailing issues of hardship for the defendant flowing from the grant of an injunction and whether the merits of an injunction outweigh any such hardship. Where it has done so and concluded that it is nonetheless necessary or expedient to seek relief an injunction is more likely to be granted since the court must accord respect to the balance which the local planning authority, as the democratically accountable body, has struck between public and private interests. Where it has not done so, an injunction is less likely to be granted.

(5) The discretion under section 187 B is a wide one. At its heart, in a case where hardship is alleged, lies what may be a delicate balancing exercise between the public interest in upholding planning law and protecting the environment and the private interests of the defendant in avoiding undue hardship as a result of being forced, under threat of potential imprisonment, to leave his place of residence together with his family.

(6) In weighing this balance the court is not bound by the balance struck by the local authority, assuming that it weighed these two factors in the balance. It is not the function of the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. The court is as well placed as the local planning authority to decide whether the considerations relating to what Lord Hutton called the human factor outweigh purely planning considerations.

(7) An injunction should only be granted if, in the judgment of the court, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and to the personal situation of and any hardship to the defendants and his family, it would be a proportionate remedy. Proportionality requires that an injunction should not impose an excessive burden on the individual whose private interests are at stake, in the case of a gipsy his private life and home and the retention of his ethnic identity.

(8) The following factors may point in favour of granting an injunction: where there has been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendant or evidence that he has played the system by wilfully exploiting every opportunity for prevarication and delay; where conventional enforcement measures have failed over a prolonged period to remedy the breach by the defendant of planning control; where there is some urgency in the situation which is sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public; where there is clear evidence of suitable alternative accommodation for the defendant and his family.

(9) The following factors may point against granting an injunction: where there has not been a history of prolonged breach of planning control, persistent non-compliance or playing of the system by wilfully exploiting every opportunity for prevarication and delay by the defendant; where conventional enforcement measures against the defendant have not been taken and found wanting; where there is no urgency in the situation (for example because of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public) which is sufficient to justify the compulsory removal of the defendant and his family from a site where they are residing; where the local planning authority failed fully or at all to consider or weigh in the balance the personal circumstances of the defendant and his family and any hardship which might flow from the grant of an injunction; where there is a real prospect of a successful appeal against the refusal of planning permission; where the effect of forcing the defendant and his family to leave the site would or might be to cause hardship or danger to the defendant and his family; where there is no or no clear evidence of suitable alternative accommodation for the defendant and his family.

(10) Unless at the time of giving his/her judgment, the judge would be prepared if necessary to contemplate sending the defendant(s) to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. The court would not be prepared to do so without considering all questions of hardship to the defendant and his family including the availability of suitable alternative accommodation if required to move. The House of Lords did not explicitly identify what other factors the court can or should take into account in considering whether it would be prepared to contemplate sending the defendant(s) to prison in the event of a subsequent breach. In my judgment the court can and should take into account all matters which are material in the particular circumstances of the case. These could include the circumstances leading up to and reasons for the actual or anticipated breach of planning law, the defendant(s)’ record of compliance with or defiance of planning law, the extent and gravity of any environmental harm caused or likely to be caused by the breach of planning law sought to be restrained and the prospects of success of any outstanding or proposed application for planning permission or appeal against refusal of planning permission.

(11) In particular the more flagrant and persistent has been the record of ignoring or defying enforcement notices or prosecutions, the greater is likely to be the case for granting an injunction. The less serious and the less persistent such a record has been, the weaker is likely to be the case for granting an injunction.

(12) It is not the function of the Court to second guess or go behind planning decisions already taken by the local planning authority or the Secretary of State on the advice of an inspector.

(13) It is, however, legitimate for the Court when considering whether it is just and convenient to exercise the discretion to grant an injunction and if so when and on what terms to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful.

(14) In such a case the court has the power to decide to adjourn the application for an injunction until after the result of a planning appeal is known. In my judgment it also has the power to suspend any injunction granted until and unless planning permission is refused or an appeal is unsuccessful. Alternatively in an appropriate case in my view the Court can take its conclusion that there is a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction at that time. It may be a factor contributing to a decision that the Court would not currently be prepared to contemplate send the defendant to prison in the event of breach of an injunction; or it may be that the court considers that one of the factors outweighing the detriment to the environment and/or the rule of law inherent in refusing an injunction is the hardship or detriment which might flow from requiring the defendant and his family to leave the site with all the consequent disruption to his family life in circumstances where the outcome of an application for planning permission or an appeal against its refusal might hold him entitled to reside on the site and/or carry on the conduct sought to be restrained.

The Court found that there was a real prospect that the planning appeal would be successful. In addition the Court considered that the personal situation of the occupiers raised real hardship if an injunction was granted. In the Court’s view this was not a ruthless, cynical action. There was a lack of urgency suggested by the previous failure to enforce the notices and the Court found that it would not, on the basis of the evidence, be prepared to send the Defendants to prison on breach of a putative injunction. In view of all of this, the proper course was to exercise the discretion to decline to make an injunction order. An adjournment was considered but rejected as, if the planning appeal was successful there would be no purpose, and if it was not, then:

It may be that circumstances will change in the future, either in relation to issues of hardship or in relation to the availability of suitable alternative accommodation, or in relation to environmental damage or in relation to the planning regime or in some other respect in such a way as to lead the Council to the view that the balance between hardship on the one hand and environmental damage and upholding planning law on the other justifies a further application. In that event the Council would not be prevented by the terms of this judgment or my order from making a renewed application. I do not encourage it to do so. That would be a matter for the Council.

Thanks to Chris Johnson of Community Law Partnership for the nudge.

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Peverse incentive

Published
by
J
on 02/08/2009
in FLW case note, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

We don’t usually cover gypsy & traveller planning permission cases, since they tend to turn on their own facts, but Rafferty and another v Secretary of State for Communities and Local Government and another [2009] EWCA Civ 809 has one point of wider importance.

The appellants owned a site (comprised of two separate plots) at Reeves Ground. They did not move onto the site but applied for planning permission. That was refused, both by the local planning authority (North Somerset Council) and by the planning inspector.

Part of the reasoning of the inspector was that, because the appellants did not live on the land, any dismissal of their application would not amount to a violation of their rights under Art. 8, European Convention on Human Rights. There was no loss of their home and, hence, no interference.

The case came before the Court of Appeal on a number of points, but this was the most significant one. The Court of Appeal was troubled by the logic. It was clear that a person who moved onto land (unlawfully) and then applied for planning permission could rely on Art. 8. Why should a person who had applied for permission without first going (unlawfully) onto the site be in a worse position? That was a perverse incentive and one which encouraged persons to break the law, in order to acquire the benefit of an Art. 8 argument.

The inspector was, therefore, wrong. It was “as much a lack of respect not to allow [the appellants] to move onto the site… as to make them move off it. The effect in either instance [was] to deny them a stable base” (at [28]).

However, it was inconceivable that the inspector would have granted planning permission even if he had not fallen into the error described above. Appeal dismissed.

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The Basildon Endgame

Published
by
NL
on 26/01/2009
in FLW case note, Homeless, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

As people may well have noticed from the news on TV and in the press, the last Court of Appeal hearing in the drawn out saga of the (unlawful) Essex traveller sites resulted in a defeat for the travellers. Basildon District Council v McCarthy & Ors [2009] EWCA Civ 13 was the Court of Appeal hearing of Basildon DC’s appeal against a High Court decision that, in effect, evictions could not proceed against individual households until individual consideration of their circumstances had been carried out. Some 63 caravan pitches were at issue.

Previous litigation over planning permission had been exhausted and, for the occupants, it was admitted that they occupied the land unlawfully.

What was at issue in this case was the lawfulness of the Local Authority pursuing evictions under s.178(1) of the Town & Country Planning Act 1990, which were proposed to be en-mass for the unlawful pitches.

For the occupants, Jan Luba QC submitted that:

the duty on the council to look for alternative sites, to meet need, continues. Particularly in the absence of such a search, it was incumbent upon the council to consider the claim of each occupant not to be evicted, one by one and plot by plot. The personal circumstances of each of them should be considered. The council’s aim was for site clearance, which, it is submitted, did not have regard to individual cases and was unlawful. [para 11.]

The occupants relied on Circular 18/94, Gypsy Sites Policy and Unauthorised Camping, in which it was stated at paragraph 10:

The Secretaries of State expect authorities to take careful account of these obligations [Children Act 1989 and Housing Act 1985] when taking decisions about the future maintenance of authorised Gypsy caravan sites and eviction of persons from unauthorised sites.

and on Circular 01/2006, Paragraph 40 of which requires local authorities to have regard to their statutory duties, including those under Part VII of the Housing Act 1996 and the Race Relations Act 1976; and Paragraph 43 provides:

Where there is clear and immediate need, for instance evidenced through the presence of significant numbers of unauthorised encampments or developments, local planning authorities should bring forward DPDs containing site allocations in advance of regional consideration of pitch numbers, and completion of the new GTA [...] Where there is an urgent need to make provision, local planning authorities should consider preparing site allocation DPDs in parallel with, or in advance of the core strategy.

Basildon’s argument was that it would perform its duties under Part VII, which had been stayed pending the outcome of these proceedings. ‘Need’ was not the same as demand, and ‘need’ had to be shown to be in the district rather than the east of england as a whole. The Council’s detailed examination in its report of December 2007 had considered individual circumstance and demand. In LJ Pill’s lead judgment at para 43

I have set out the contents of the officers’ report and minutes in some detail. Having considered these as a whole, it does not appear to me that the Committee failed to address the correct issues when deciding whether to take action under section 178. Need and the absence of alternative sites in the District was recognised, as it had been in the Secretary of State’s planning decisions. On the other hand, it does not follow from a claimant’s wish to live on a site in Basildon District that he is entitled to have one there. The council was entitled to regard the situation of the sites in the Green Belt as a factor of substantial weight when doing the exercise they acknowledge was required. However, both when considering whether planning permission should be granted and when making an assessment under article 8 of the Convention, such personal circumstances as the proximity of family members may also be a factor. I accept the formulation of Ouseley J in O’Brien v Basildon District Council [2007] 1 P&CR 16. Ouseley J stated, at paragraph 171, that “the question of local connection could be a live issue in the assessment of needs.” He also stated that the Green Belt factor is also “a matter for legitimate debate.

The Council argued that demand for the east of england was clear, but not the allocation to Basildon. As the Sec of State had refused temporary planning permissions and upheld enforcement on consideration of individual cases, there was no reason to uphold a failure under Para 43 of the guidance.

Held – at paras 70-71:

The procedure which has been followed, the refusal of planning permission, consistently supported by the Secretary of State, the taking of enforcement action under section 172 of the 1990 Act, and the flagrant disregard of enforcement orders upheld by the Secretary of State, can legitimately form the basis for a decision to take action under section 178 of the 1990 Act. In taking that decision, the persistent breaches both of planning control and the criminal law are factors which may be taken into account. The council was not required to act as if the decisions on the enforcement notices had not been taken.

Given the planning context, I do not consider that the council has erred in law in failing to give further consideration to alternative sites at the time the decision to take action under section 178 was taken. As appears from Circular 01/2006, sites are to be provided through the development plan process. I have referred to that process and to the Secretary of State’s comment on its current stage. In his planning decisions, the Secretary of State has plainly been mindful of factors in favour of the claimants and has declined to grant planning permission. Temporary permissions, contemplated in paragraphs 45 and 46 of the Circular have been refused by the Secretary of State, mindful of all the factors involved. I agree with the approach to this issue of Keene LJ in O’Brien, including his reference to the planning system being development plan-led and the likely exacerbation of controversy by by-passing the system. Whether an attempt should be made to bring forward DPD allocations (paragraph 43 of Circular 01/2006) may be the subject to debate but failure to do so does not, in my judgment, and in this particular context, render a decision to act under section 178 unlawful.

And, LJ Lloyd on the Part VII HA 1996 issue:

[A]lthough the question of homelessness was embarked upon at an earlier stage, it has, properly, been in abeyance until now, and that if the council’s decision stands, as a result of the appeal, the housing department will engage with those affected, to see which of them wish to apply under section 183 of the 1996 Act, and the council will comply with its duties under the Act in relation to those who do so apply. None of that had to be addressed as a pre-condition of proceeding to enforcement under the 1990 Act. Officers will take the necessary steps to comply with Part VII of the 1996 Act as part of the process of deciding how and when to carry out their delegated functions under the council’s decision.

Appeal allowed. The evictions under s.178 can proceed.

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Alternative sites – the burden of proof

Published
by
NL
on 10/09/2008
in FLW case note, Housing law - All, Licences and occupiers, Possession and Regulation and planning
. 0 Comments

South Cambridgeshire District Council v Secretary of State for Communities and Local Government & Ors [2008] EWCA Civ 1010 was an appeal of a High Court decision on Judicial Review of the decision of an Inspector in the appeal of a planning decision not to allow residential caravan siting for a family on a property in South Cambridgeshire.

The family involved had srong personal reasons involving the medical condition of a child for remaining in the area. Planning permission was refused on the basis that it was against the regional development plan. The inspector allowed the appeal with strict conditions on the basis of the exceptional conditions. South Cambs challenged on the basis, amongst others, that the Inspector had failed to seek evidence on the availibility of alternative sites. At JR, South Cambs lost on all counts, but an appeal was eventually allowed on the limited point:

In seeking to determine the availability of alternative sites for residential gypsy use, there is no requirement in planning policy or case law for an applicant to prove that no other sites are available or that particular needs could not be met from another site.

South Cambs relied on a number of Green Belt cases, and then suggested Judge Gilbart QC’s comments in McCarthy v Secretary of State for Communities and Local Government [2006] EWCA (Admin) 3287 set a precedent. The Court of Appeal held otherwise, noting that the passage at issue was if anything, a restatement of the balancing of issues, not a setting of a necessary hurdle. The Green Belt cases involved other priorities so were not on point.

Lord Justice Scott Baker at para 36, states

In my judgment the law is clear. The position is governed by s38(6) of the 2004 Act. The Development Plan is determinative unless material considerations indicate otherwise. There is no burden of proof on anyone. It is a matter for the planning authority, or in this case the inspector, to decide what are the material considerations and, having done so, to give each of them such weight as she considered appropriate. That, so it seems to me, is a matter of planning judgment.

South Cambs sought to broaden the appeal, arguing the Inspector’s reasons for her decision were inadequate. This was dismissed in view of the High Court judgment, which dealt with the point fully.

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Considering Equality of Opportunity

Published
by
NL
on 28/02/2008
in FLW case note, Homeless, Housing law - All, Licences and occupiers and Regulation and planning
. 0 Comments

Baker & Ors, R (on the application of) v Secretary of State for Communities & Local Government& Ors [2008] EWCA Civ 141. A Court of Appeal judgment on appeals of refusal for planning permission for the retention of mobile homes on green belt land by Irish traveller families. The appeal failed, but what is particularly interesting is the examination of section 71(1)(b) of the Race Relations Act 1976. The EHRC intervened in this appeal, so the issue of ‘due regard’ to s71 “the need to promote equality of opportunity between persons of different racial groups”, in public authority decision-making got a good hearing.

In the only judgment, Lord Justice Dyson rejects the need for an explicit reference to s.71(1), or required form of words, instead following R (on the application of Lisa Smith) v South Norfolk Council [2006] EWHC 2772 (Admin). At 37:

The question in every case is whether the decision-maker has in substance had due regard to the relevant statutory need. Just as the use of a mantra referring to the statutory provision does not of itself show that the duty has been performed, so too a failure to refer expressly to the statute does not of itself show that the duty has not been performed.

That said,  a reference to the requirements of s.71(1) and associated codes and guidance would be good practice.

In this case, the decision-maker had clearly had regard to and balanced the relevant issues.

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