06/07/2011

Injunction, planning and committal, post Cala

Broxbourne Borough Council v Robb & Ors [2011] EWHC 1626 (QB)

I’ll give a somewhat lengthy report of this case, because it is one of the first to touch on the changing planning environment for Gypsies and travellers after the DCLG’s stated intention to remove the Regional Plans and after Cala in the Court of Appeal (our brief report here).

This was Broxbourne BC’s committal application, much adjourned, for breach of an injunction to cause, permit or occupy a caravan on a plot alongside the river Lea. Mr Breary was the second defendant. From 2009, Mr B owned the plot number 19, one of 73, 50 of which were owned by the Lea Valley Regional Park Authority. It was trying to acquire the rest.

Of the 73 plots along Wharf Road, by 2010 50 were owned by the Lea Valley Regional Park Authority, on 2 of which the Authority was allowing caravans to be stationed for the time being. Of the remaining 23 plots 13, including plot 19, were in the council’s view being used unlawfully for the stationing of caravans. Residential use is authorised for only one plot, and that is a result of long usage, not specific authorisation. The remaining plots are not used for caravans, although in some cases other development has taken place. It seems that it was from about the year 2000 the plots with residential caravans have been occupied by gypsies and travellers.

In May 2008, the Council obtained a without  notice injunction under section 187B of the Town and Country Planning Act 1990 for plot 19 in the above terms. A copy was posted on the fence and remained attached to the fence into 2009 on the Council’s evidence. Through 2008 there were a couple of apparently abandoned caravans on the site.

In October 2009 Mr B purchased plot 19 from the first defendant in the case. He and his family moved on the plot in about July 2010. It was accepted he did not know of the injunction. The Council wrote to Mr B with a copy of the injunction in November 2010, giving him 14 days to comply. By this point, Mr B’s children were attending the local school.

Mr B explained his situation to the Council. The Council officer visited twice in mid December 2010, noting Mr B needed advice, but it was occupation on these dates that formed the basis for the committal application. The Council’s planning authority had approved enforcement action against all the sites in the river side area in September 2010.  On 20 December 2010, the Council applied for committal.

In January 2011, Mr B applied for a change of planning use for plot 19 to a caravan site with two caravans for residential occupation. This was refused in March, with the given reasons being inappropriate development within the green belt; the location of the site in a high risk flood area; the location of the site within the designated boundary of the Lea Valley Regional Park; the applicant’s failure to provide sufficient information regarding the suitability of existing water, sewage and electricity infrastructure; and the interests of highway safety, since its occupation would result in an intensification of use of an un-manned level crossing on the London to Stansted railway line. Mr B appealed that decision. The appeal is not due to be heard until 27 July 2011 with a decision following, possibly quite some time later.

Mr B applied to adjourn the hearing until the determination of his planning appeal. The Court gave that short shrift

In my judgment it was not appropriate to adjourn the hearing. Given the history of the false starts of the application the Overriding Objective pointed in my view in a diametrically opposite direction to that perceived by Mr Willers. Secondly, the ramifications of the adjournment proposed would be to deprive the injunction of any force, whatever the outcome of the appeal. As indicated the appeal hearing will take place on 27 July although it may not be for some time until after that before the inspector publishes his or her decision. So for a very substantial period Mr Beary would have been in occupation of plot 19, in breach of the injunction. An adjournment would mean that the court would continue the injunction in force knowing that it will be breached. That to my mind was a situation better avoided; the more desirable course was to address the committal and variation applications head-on.

On the planning application, the Court noted that the national planning policy under C1/2006 had required local authorities to consider temporary planning permission where there is an un-met need but no available alternative gypsy and traveller site provision in an area, if there is a reasonable expectation that new sites are likely to become available in the area at the end of the period to meet the need. Paragraph 46 of Circular 1/06 states that in such circumstances local planning authorities are expected to give substantial weight to the unmet need in considering whether temporary planning permission is justified.

However, the DCLG had announced that the regional plans, which had required local authorities to identify sites, was to be scrapped. The Court noted the High Court decision in R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin) that revocation of the plan by excecutive action was unlawful and also the Court of Appeal decision in R (Cala Homes (South) Ltd) v Secretary of State for Communities and Local Government [2011] EWCA Civ 639 that the intended revocation of the regional plan was a material factor that planning authorities could take into consideration. It was also noted that the government has also published a draft planning policy statement “Planning for traveller sites” following its announcement that it intended to withdraw C1/2006 and replace it with “light touch” guidance.

The Council’s own development plan, dating from December 2010, aimed for the limited expansion of existing private sites and one public sites for travellers. The Lea Valley area was not part of the plan, being instead part of a flood risk area and to be developed for the regional park and to lessen flood risk. Caravan sites were not permitted (being ‘highly vulnerable’) in area of flood risk zone 3a areas. The Environment Agency classified the Lea River Valley area, including the plot, as zone 3a. The level of risk to the spot where the caravans were situated was disputed by Mr B.

There as a further planning consideration which was the aspiration for the area to become a regional park. The Lea Valley Regional Park Authority contended that planning permission for the site would be against green belt and regional park objectives.

Turning to the committal application

Mr B argued that a) the Council had delayed in enforcement, and during that period Mr B and his family settled in the site and the children began school. When the Palnning Committe endorsed enforcement they were unaware who was living on the site or their circumstances. There had been no referall back to the committee before beginning enforcement in December 2010.

b) the Council had failed to have regard to the Race Relations Act 1976 and Article 8 implications of taking committal action, and the impact of such action on the children. Section 71 of the Race Relations Act 1976 imposes an obligation on bodies like the council to have due regard to the need to promote equality of opportunity and good relations between persons of different racial groups. The attendant code of practice directs decision makers to consider whether a policy aim can be achieved without causing an adverse impact on a racial group or whether the adverse impact could be reduced by taking particular measures. A delay of three months in enforcing an injunction in similar circumstances on these grounds was ordered in South Cambridgeshire District Council v O’Brien [2008] EWCA Civ 1159.

The Court took the view that although O’Brien was a case about an application for an injunction, that would not prevent the same principles applying on a committal application, particularly as the Court’s order on a committal application can be tailored to the circumstances, even more so than on an injunction application.

However, the Court was not satisfied there was any flaw in the Council’s decision making. ‘Due regard’ under s.71 Race Relations Act meant appropriate in the circumstances ( Baker v Secretary of State for Communities and Local Government [2008] EWCA Civ 141), including the countervailing factors. Although the Council had made no specific reference to the duty in its papers, it was clear that in substance the Council had had due regard to the special position of the gypsies and travellers in the Wharf Road area. IN the broader enforcement action a distinction had been made between those who had been there for some time and more recent arrivals, with the former left until alterantive sites were available. In addition, Mr B faced a high hurdle on his planning appeal in the context noted above.

There were also concerns about how far the court could countenance flouting of its orders.

On Mr B’s aplication for a stay until determination of his planning appeal, this did not stand a realistic prospect of success Against the argued precedents of South Buckinghamshire District Council v Smith [2006] EWHC 281 QB, South Cambridgeshire DC v Price [2008] EWHC 1234 (Admin) and Brentwood Borough Council v Ball [2009] EWHC 2433 (QB), where injunctions had been refused pending planning appeals, there was the fact that these all concerned injunction applications. Following Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709, South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429 and Wychavon District Council v Rafferty [2006] EWCA Civ 628, however, on committal applications and applications to vary injunctions which were being breached, “maintaining the authority of court orders is an overarching consideration”.

There had been no application “forthwith” when Mr B realised he was breaching the injunction and an application to vary was only made once a committal application had been made. While there may well be delays in being able to obtain legal advice, the clear tenor of Gammell was that action should be immediate.However:

it is appropriate that the principles in South Bucks District Council v Porter have some purchase in a case like the present since at the time the injunction was issued, indeed at the time that the application to commit was authorised, there was no knowledge of Mr Beary and no consideration of his personal circumstances. Thus in considering the application to vary it is necessary for me to consider (1) planning issues, such as the planning merits, the planning history, including the length of unlawful occupation of the site, and the availability of suitable alternative sites; (2) the personal circumstances of the family, including the implications of Article 8 of the European Convention of Human Rights, and the consequences were the injunction to remain in its current form; and (3) the overarching public interest in ensuring that court orders are respected and obeyed.

On the planning issues the court was not persuaded that Mr B had real prospects of success in his appeal. Mr B had to surmout the hurdles of the green belt and the ‘very special circumstances’ for the grant of permission. Even if C1/2006 was still in force at the time of the appeal, the direction of travel of the DCLG was clear and, could, post Cala, be taken into account. This was even before the disputed issues about flooding were taken into account.

On article 8 proportionality, Z H (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 was cited to the effect that under the UN Convention on the rights of the child, their best interests must be a primary consideration in public policy making.

However, in Chapman v United Kingdom (2001) 33 EHRR 18 a refusal of planning permission was an interference with a gypsy’s art 8 rights, but was held to be proportionate.

The court did not accept the argument that because there is an unmet need for gypsy and traveller sites, the decision not to allow the applicant gypsy family to occupy land where they wished constituted a violation of Article 8. That would be tantamount to imposing on contracting states an obligation to make available an adequate number of suitably equipped sites. Article 8 did not give a right to be provided with a home.

So, while the position of the children was of great importance, and “Mr Beary’s conscious defiance of the law since he knew of the injunction cannot be visited on his children nonetheless, as Z H (Tanzania) made clear, their interest as a primary consideration does not mean that it cannot be outweighed by other factors in the balance so that interference with their Article 8 rights is proportionate. ”

In addition and as the decisive factor for the application to stay:

The fact is that there is properly in place an injunction prohibiting residential occupation of the site. To vary the injunction so as to permit the very action that it is designed to prevent would fail to acknowledge the force of the injunction. In Mid Bedfordshire District Council v Brown, South Cambridgeshire District Council v Gammell and Wychavon District Council v Rafferty the Court of Appeal has made clear that, where there is a continuing breach of an existing injunction, and the application is to vary it for the future, so as to allow a person to continue to do the very act which the injunction prohibits, the need to uphold the authority of the court is of overarching importance in the exercise of the court’s discretion.

The breach of the injunction was admitted and Mr B had apologised to the court for it. Mr B asked that the Court make no order, or adjourn sentence pending the planning appeal or impose a limited fine.

Guilford Borough Council v Smith The Times, 18 May 1993, endorsed on appeal by the Court of Appeal: [1994] JPL 734, was authority only for “the rather obvious and limited point that a judge in considering committal must scrutinise carefully the particular circumstances of the instant case” and could exercise a discretion accordingly.

R v Newland [1987] JPL 851: (1987) 54 PCR 222 was a successful appeal of a first instance committal order where the Judge had cursorily dismissed the prospects of success of a planning appeal, but that case specifically did not include the careful canvassing of the prospects of success of the planning appeal that had taken place in this case. It was not therefore authority for adjourning sentence pending the appeal, as argued by Mr B.

In this case, a fine would not accord observance of the injunction the importance it deserved. Following South Cambridgeshire District Council v Gammell, the committal application was granted and a sentence of 28 days given, “that sentence not to take effect if he removes the caravans within 4 weeks from today. That period should give him time to remove the mobile home and caravan from the site and will enable the children to finish the school year at the local primary school.”

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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