Ipsofactoj.com: International Cases [2005] Part 2 Case 3 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Lyn M. Davis

- vs -

Tonbridge & Malling

Borough Council

LORD JUSTICE AULD

LADY JUSTICE ARDEN

LORD JUSTICE JACOB

26 FEBRUARY 2004


Judgment

Lord Justice Auld

  1. The appellants, who are a group of fairground operators, known as "travelling showmen", and sometimes as "travelling show-people", appeal with the permission of Sedley LJ, from an order of Stanley Burnton J on 14th May 2003 granting the respondent, the Tonbridge & Malling Borough Council, the relevant planning authority, injunctive relief under section 187B of the Town and Country Planning Act 1990 in respect of their occupation in breach of planning control of a six hectares field that they owned north of Sotts Hole Cottage, Crouch Lane, Platt in Kent.

  2. As the question of the entitlement of the Council to injunctive relief against the appellants is at the heart of the appeal, I should set out straight away the provisions of section 187B of the 1990 Act:.

    (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. Prior to the appellants’ occupation of the site, it was agricultural land. It is part of a swathe of open countryside, bounded by footpaths on two sides. It is set in the Green Belt and is part of a designated Special Landscape Area. Its use by the appellants is contrary to the Council’s development plan policies which, in accordance with national planning policy, confer special protection against non-conforming use of land in the Green Belt and of such designation. The sole means of vehicular access to the site is along Crouch Lane, which, though largely straight along the frontage of the site, is for much of its length a narrow, winding country lane, confined with steep-sided banks and with trees and foliage overhanging it. It is unsuitable for large vehicles towing trailers and heavy goods vehicles.

  4. Lyn Marie Davis, the first appellant, purchased the site in about November 2000. At about the same time, she and all or some of the other appellants, without notice to the Council and knowingly in breach of planning control, brought onto it their caravans and fairground equipment and began to fence and lay hardcore for access drives and parking areas. They have continued to use and develop the site in that way ever since, notwithstanding service on them of a number of enforcement notices which have been upheld by the Secretary of State on appeal and in respect of which the time for compliance has long since expired.

  5. At the time of the proceedings before the Judge the site had been divided into 19 plots, 16 of which other appellants had purchased. All or most of the plots had been fenced off, and a significant part of the site was by then given over to access drives and hard-standing for the appellants’ heavy vehicles, fairground rides, stalls and associated machinery. Some of the plots are empty or have little on them. Others have a great deal. For example, Mrs. Davis’s plot at the time of the application to the Judge had on it five trailers, a garden shed, two storage units, a big caravan, two touring caravans, four cars, seven lorries, a steel-framed workshop, a generator and some fairground rides and other attractions. In appearance, the appellants’ occupation of the site constitutes a small settlement, but it is a well spread one, since the site is substantially larger than is necessary to meet their needs.

    TRAVELLING SHOW-PEOPLE

  6. Travelling show-people, as I shall call them throughout this judgment, have a long established place in English life. Their special pattern and rhythm of work has given them a distinct cultural identity, for which provision is made in national and local planning policies. On 6th December 1991 the Department of the Environment and the Welsh Office issued identical Circulars, respectively nos. 21/91 and 78/91, giving advice to local authorities about planning considerations for travelling show-people. Circular 21/91 described them and their way of life as follows:

    2.

    They are self-employed business people who travel the country holding fairs, chiefly during the summer months. Although their work is of a peripatetic nature, show-people nevertheless require secure, permanent bases for the storage of their equipment and more particularly for residential purposes. Such bases are most intensively occupied during the winter, when many show-people will return there with their caravans, vehicles and fairground equipment. For this reason, these sites traditionally have been referred to as ‘winter quarters’. But increasingly show-people’s quarters need to be occupied by some members of the family permanently; older family members will stay on for most of the year and there are plainly advantages in children living there all year to benefit from uninterrupted education.

    ....

    4.

     

    The nature of show-people’s sites is unusual in planning terms. The sites illustrate the show-people’s characteristic self-sufficiency by combing residential, storage and maintenance uses. Typically a site comprises areas set aside for the show-people’s accommodation – usually caravans and mobile homes – and areas where vehicles and fairground equipment can be stored, repaired and tested. This means that the sites do not fit easily into the existing land-use categories. Some of the difficulties show-people have experienced with the planning system can be attributed to this.

  7. However, the cultural identity of travelling show-people and their status, as a matter of planning law and policy, should not be confused with those of gypsies, for whom quite distinct provision is made; see e.g. Wrexham CBC v Berry & Berry and The National Assembly of Wales [2003] EWCA Civ 835. Circular 22/91, in paragraph 3 identified some of those distinctions:

    3.

    Most show-people are members of the Show-people’s Guild of Great Britain and are required by the Guild to follow a code of practice on the use of their sites. Membership of the Guild provides show-people with exemption from the site licensing requirements of the Caravan sites and Control of Development Act 1960 when they are travelling for the purpose of their business, or where they occupy quarters for some period between the beginning of October and the end of March in the following year. However, they only enjoy permitted development rights under Part 5 of Schedule 2 to the Town and Country Planning General Development Order 1988 when travelling for the purpose of their business. They are therefore required to seek planning permission to establish all other sites. Furthermore, since show-people are specifically excluded from the definition of gypsies under the Caravan Sites Act 1968, they do not benefit from the duty on local authorities under that legislation to provide gypsy accommodation.

  8. Whatever the distinctions to be drawn between gypsies and travelling show-people in terms of planning law and policy, it is plain that both groups have experienced similar difficulties over the years in matching their respective life-styles to modern-day conditions and to the often conflicting interests of the public at large, for both of which planning law and policy is intended to provide a fair balance. Circular 22/91, in paragraph 5, acknowledged an increase in the difficulties in striking the correct balance whilst avoiding hardship to show-people:

    5.

    In recent years many show-people have had to leave traditional sites which have been displaced by other forms of development, sometimes following compulsory purchase. Some show-people have had considerable difficulty in obtaining alternative sites with planning permission. This has caused overcrowding on some sites, and caused some show-people to leave their home areas in attempts to find alternative sites – not always successfully. The problems show-people have experienced in obtaining planning approval for their sites have led them sometimes to occupy land in breach of planning control, resulting in lengthy enforcement proceedings. This jeopardises the show-people’s livelihoods, and entails considerable cost to local planning authorities. The Government urges local planning authorities to pay close attention to this guidance with the aim of avoiding such conflict in the future.

  9. Circular 22/91, in paragraph 6, went on to advise local authorities: to consider the needs of travelling show-people when preparing their local and unitary development plans; to identify existing sites with planning permission and realistically to assess the amount of accommodation required; and, where there has been a local tradition of occupation by show-people and/or a need for it, to make specific proposals for suitable locations.

  10. Despite this guidance, the difficulties for show-people have continued. Nearly a decade after Circular 22/91, the Select Committee on Environment, Transport and Regional Affairs, in its 9th Report issued in June 2000, concluded that their needs – which, if anything, had become greater in the intervening period - were still not being met within the planning system. The Committee reported that many local planning authorities were not following the guidance in Circular 22/91; in particular they were not properly considering their needs in the preparation of development plans or when considering individual applications for planning permission for permanent sites. I should set out some of the Committee’s observations:

    29.

    The term ‘winter quarters’, referring to the permanent base, or depot, to which travelling show-people return when not attending a fair, is something of a misnomer. It is a throwback to an era when most travelling shows were held from April to late October, and show-people would travel continually during that period, returning to their permanent base only during the winter months. For many different reasons, the season is now for most show-people much more complex, necessitating a base to which they can return to live at any time and where their equipment can be stored, tested, and in some cases adapted. The evidence we received suggested that there is an increasing need for such sites.

    30.

    .... increasingly, show-people need all-year-round bases where they can leave their equipment when it is not being used; where this equipment can be serviced and safety checked; and to which they can return to live at any time.

    31.

    Three further considerations indicate that more all-year round sites need to be provided. As with other people, show-people are on average living longer. As a result, while in the past there were a small number of retired show-people, today their numbers are increasing, and a new category is developing of people who still do a little work, but do not work all the time. Accommodation therefore needs to be available for those people, who, having travelled all their lives, cannot be expected to move away from their family unit into sheltered accommodation or nursing homes. At the other end of the age scale, the educational needs of travelling show-people’s children have to be taken into account .... Finally, it is worth making the point that more and more show-people simply want the security of owning their own site.

    32.

    Against this background, urban conditions have been changing, especially in the South East of England. Pieces of waste land have been disappearing, land values have escalated, and temporary stopping places for all travellers have been reduced. In particular many local authorities and landowners have put up barriers around vacant sites to keep out those leading an itinerant lifestyle, particularly tinkers.

    PLANNING CONSIDERATIONS

  11. As I have indicated, the site is situated in the Green Belt and is part of an area designated in the local plan as a Special Landscape Area. Government policy, as expressed in PPG2, contains a presumption against inappropriate development in the Green Belt other than in very special circumstances. It defines inappropriate development as the making of material changes in the use of land unless they maintain openness and do not conflict with the purposes of including land in the Green Belt.

  12. The relevant provisions of the approved Kent Structure Plan 1996 and the Tonbridge and Malling Borough Local Plan 1998, which apply to the site, require, in general, the preservation of the countryside so far as possible. The Local Plan contains specific policies relating to travelling show-people. Policy P5/7 safeguards the use of an existing show-people’s site at another location. Policy 5/8 permits development within built-up areas where the proposed occupants have a clear local need for the site, where there would be no harm to residential amenity and where measures are taken to minimise visual intrusiveness. And Policy P2/16 provides that proposals may exceptionally be permitted in the countryside in accordance with those criteria, subject to there being no overriding agricultural, conservation, including Green Belt, landscape or highway objections to the site.

  13. It is common ground that the appellants’ use of the site throughout has been contrary to National and local Green Belt policies and Special Landscape Area and countryside controls, and to local and structure plan polices protective of the countryside. The Inspector’s description of the site in his Report was as follows:

    The appeal site is part of an area of undulating landscape of open sites, belts of trees and woodland, designated in the Local Plan as Special Landscape Area which on the Proposals Map forms part of an extensive and continuous area of high landscape quality. The site is prominently located within the SLA on account of its topography, a high plateau which falls away from the centre of the site both to the north, and more steeply, towards the south-west. This exposes it, despite belts of trees, to long views including from Wrotham Hill in the north and the A227 to the west ....

  14. There are also planning objections, albeit of a less fundamental nature, to the appellants’ use of the site, in the highway danger caused by the thoroughfare of their heavy vehicles on the narrow and winding country access road, Crouch Lane, and in some loss of residential amenity.

  15. The site also does not satisfy the guidance contained in Circular 22/91, which recommends certain criteria for local authorities when considering provision for travelling show-people in their local plans and applications for planning permission:

    7.

    Sites should be reasonably flat, have good vehicular access, and be reasonably convenient for schools and other community facilities. They should be identified having regard to environmental considerations, including the potential nuisance to neighbours from vehicular movement and the maintenance and testing of equipment. Wherever possible sites should identified in locations with convenient and safe access to the road network; .... Sites on the outskirts of built-up areas may satisfy these criteria but, where such locations are proposed, care should be taken to avoid visual encroachment into the open countryside. Sites with substantial natural screening may be particularly appropriate ....

    8.

    Where the development plan is relevant to the development proposal, local planning authorities should determine planning applications in accordance with the plan unless material considerations indicate otherwise .... Nothing in this advice contradicts that contained in other circulars and Planning Policy Guidance Notes restricting development in specially protected areas. For example, very special circumstances have to be demonstrated to justify allowing policy development for purposes not normally appropriate in the Green Belts ....

    THE PLANNING HISTORY AND THE INSPECTOR'S REPORT

  16. The appellants made no application for planning permission before starting this unlawful development because, according to Billy Davis, the husband of the appellant, Lyn Davis, they knew that it was almost bound to be refused because planning permission for the development would involve serious breaches of planning policies.

  17. I need not rehearse the history of the various enforcement measures taken by the Council other than to mention the following highlights. It took prompt enforcement action in late November 2000 as soon as it became aware of the appellants’ arrival on the site, to which the appellants responded equally promptly by applying for planning permission. As a result, proceedings instituted by the Council for injunctive relief against the appellants were stayed pending the outcome of the planning application. In July 2001 the Council refused planning permission, and in October 2001, the Secretary of State’s Inspector, following a hearing the month before, reported to the Secretary of State recommending dismissal of the appeals. His conclusions included the following:

    1. Impact on the Green Belt

      The dense coverage of the site with many caravans and large numbers of vehicles and fairground equipment, fencing of 17 family plots and construction of access tracks and hard-standings, would have "a severely detrimental impact upon the openness of the Green Belt" and, set as it was in open countryside well outside any settlement, it would also be "a serious encroachment into the countryside, in conflict with one of the main purposes of the Great Belt" and with national and local planning policies.

    2. Impact on the Special Landscape Area

      The prominent position of the site in an extensive and continuous area of high landscape quality, the nature of the appellants’ use of it and the difficulty of fully screening it would "represent a major change in the character of the site and a serious intrusion into an otherwise mainly unspoiled rural landscape", and "could not be justified because of the unacceptable impact on its surroundings which was not outweighed by need for sites for travelling show-people".

    3. Highways

      Although there was not a strong objection in terms of capacity to the appellants’ use of the narrow, winding Crouch Lane for taking its vehicles to and from the site, there was "a strong highway objection to the development" because of the "fundamentally unsatisfactory nature" of the lane for such large and heavy vehicles.

    4. Impact on Residential amenity

      There would be "some loss of residential amenity from the appellants’ use of the site", but "it would not be of serious proportions"

    5. Very special circumstances

      Despite the needs of the appellants and the lack of any alternative site for them, they were not such, given the special features of the site, as to amount to very special circumstances necessary to outweigh the inappropriateness of the development in the Green Belt and the other planning harms.

    6. Temporary planning permission

      The planning constraints on the site were of such strength that it would be inappropriate to grant temporary permission for three years sought by the appellants as an alternative to full permission, though they should be allowed 12 months for compliance.

    7. Human rights

      The effect of upholding the enforcement notice and refusal of planning permission would deprive the appellants of their homes and would constitute an interference with their Article 8(1) rights. But the interference was lawful and in pursuit of legitimate aims, namely the protection of the Green Belt, Special Landscape Area and countryside from unnecessary and harmful development and the avoidance of highway danger. Those aims were in the national interest and served to protect the rights and freedoms of others. Enforcement action was necessary and proportionate, for nothing less than cessation by the appellants of their use of the site would achieve the aims. He added, in reliance on an observation of the European Court of Justice in Chapman v UK (2001) 33 EHRR 399, at para 102, that, where, as here, homes had been established unlawfully, an objection to interference with Article 8 rights carried less weight.

    THE SECRETARY OF STATE'S DECISION

  18. In December 2001 the Secretary of State, in his decision letter, agreed with the Inspector’s conclusions and dismissed the appeals. But he granted the appellants a period of 12 months in which to vacate the site. In relation to the personal circumstances of the appellants and the lack of any alternative site in South East England, his decision letter stated that:

    13.

    The Secretary of State has .... considered whether there are any countervailing material considerations that would outweigh the presumption against inappropriate development in the Green Belt, the harm to the natural beauty of the Special Landscape Area and the harm arising on highway safety grounds and to the amenities of nearby residents .... The Secretary of State has also very carefully considered the individual needs of the appellants summarised by the Inspector in ....  his report, and agrees with him that the appellant have a clear need for a site but that it is less clear that the specific need is for a site either in the area in which the appeal site is located or for a site of the size of the present site. ... It is accepted that the appellants have undertaken a comprehensive search for an alternative site but with no success and the Secretary of State agrees with the Inspector that the only conclusion that can be drawn from the search is that, at the present time, no alternative site for show-people can be identified either in the locality or within a wider search are of South East England. He further agrees with the Inspector that this is a substantial material consideration to weighed in the balance. However, for the reasons given by the Inspector ...., the Secretary of State concludes that the factors weighing in support of the proposed development are insufficient to outweigh the harm and conflict with national and local policy .... He finds no very special circumstances to justify the grant of permission no[r] any reason for a decision otherwise than in accordance with the provisions of the development plan.

  19. The appellants took no notice of the Secretary of State’s decision. Far from making attempts to comply with it, they undertook further fencing and surfacing works, prompting the Council to issue and proceed with ten enforcement notices, each one of which was upheld by the Secretary of State’s Inspector.

    THE JUDGE'S JUDGMENT

  20. In February 2003, by which time the year’s grace allowed by the Secretary of State for the appellants to vacate the site had expired, the Council recommenced its proceedings for an injunction requiring the appellants to leave the site. In April 2003 the Judge heard the matter, including clear and undisputed evidence on behalf of the appellants that, despite comprehensive searches made on behalf of travelling show-people, there was no alternative site for them in the South East of England. The Council made no suggestion as to where they could take their caravans and fairground equipment. The issue for him was whether it was appropriate to grant injunctive relief under section 187B of the 1990 Act, which, as he was to acknowledge in paragraph 12 of this judgment, posed "the stark question whether the .... [appellants] .... should be compelled to leave the site when they have nowhere else to go".

  21. In May 2003 the Judge gave judgment and granted the injunction sought. At the time of his judgment the applicable law was as stated by Simon Brown LJ, as he then was (with whom Peter Gibson and Tuckey LJJ agreed), in South Bucks District Council v Porter [2002] 1 WLR 1359, though it was known that an appeal to the House of Lords was pending.

  22. The Judge acknowledged, in paragraphs 37, 50 and 51 of his judgment, that the appellants would suffer "undoubted", "real" and "great" hardship from the sought injunction, and he referred also to their "desperate need" and their predicament. In approaching the question whether to grant it, he spoke, in paragraph 12, of a dichotomy of, on the one hand, hardship to the appellants, and, on the other hand, their unlawful development continuing indefinitely, with the planning decision "in practical terms set at nought".

  23. The Judge set out at some length the planning conclusions of the Inspector and the decision of the Secretary of State on the planning appeals, and, as to the planning merits of the case, implicitly accepted them. He also, as I have said, acknowledged the hardship that the appellants would face if they were evicted from the site. In paragraph 40 of his judgment (which I set out in paragraph 44 below in the context of the first ground of appeal), he set the scene for his reasoning on the issue before him, - enforcement or not. He spoke of the Council and the Secretary of State having taken into account Article 8 considerations in making their planning judgments. And he commented, that, apart from the reasoning of the Court of Appeal in Porter and "all other things being equal", "judicial loyalty (and not merely deference)" to the planning authorities’ decisions, would have required enforcement of the decision. However, as his judgment, read as a whole, makes plain, he recognised that the Court of Appeal’s decision in Porter had established that he had to decide the enforcement issue for himself and that, on the evidence before him of the great hardship that eviction would cause the appellants, all other things were not necessarily equal.

  24. In paragraphs 43 and 44 of the judgment the Judge made brief references to the remedies of self-help and criminal proceedings for non-compliance with enforcement notices, for which sections 178 and 179 of the 1990 Act respectively provide. It is plain, in my view, that he only mentioned them in order to show that he had considered them and to reject them as practical alternatives. I would not have included them in this summary of the judgment, but for the fact that they are the subject of complaint in ground 2 of the appeal, which I consider in paragraphs 56 to 58 below.

  25. The Judge returned, in paragraph 49 of his judgment, to the weight to be given to the planning decisions when considering the suggestion that he should deal with the matter by refusing an injunction until another site had been found. He said that the failure of the searches for an alternative site indicated that to postpone enforcement until one could be found would be to postpone it indefinitely. He said that it would, in effect, amount to the grant of a planning permission in circumstances in which the Inspector and the Secretary of State considered that even a temporary planning permission was not appropriate.

  26. The Judge, having set out all the material considerations for and against the grant of injunctive relief, expressed his conclusions shortly in paragraphs 50 and 51 of his judgment:

    50.

    The real choice, therefore, is between an injunction and no injunction. The first imposes real hardship on the Defendants; the second fails to restrain continuing unlawful occupation.

    51.

    In my judgment, in the circumstances of this case, the Court should grant injunctive relief. The injunction will cause great hardship to the Defendants, but it is not a disproportionate response to the continuing unlawful use of the site. It is not suggested that there are matters personal to any of the individual Defendants, such as their state of health, other than those considered by the Secretary of State and the Council, which would make enforcement by injunction inappropriate. No breach of Article 8 will be involved. On the basis of the decision of the Secretary of State and those of the Claimant, an injunction is the appropriate relief to be granted.

  27. The Judge, though refusing permission to appeal his judgment, extended the time for lodging an appellant’s notice until fourteen days after judgment of the House of Lords in Porter.

  28. In May 2003 the House of Lords gave judgment in Porter ([2003] 2 WLR 1547). They endorsed the judgment of Simon Brown LJ, but Mr. Richard Drabble, QC, on behalf of the appellants maintains that in their individual speeches, their Lordships made clearer or gave added emphasis to the two stage decision process of which Simon Brown LJ spoke in his judgment, namely that the court should normally defer to the planning authorities on the issue of planning merits, but should make its own decision on the issue of enforcement having regard to all the circumstances, including those personal to the party against whom injunctive relief was sought. The House held, as had Simon Brown LJ, that a court, in considering whether to grant injunctive relief under section 187B is addressing different questions from those for decision by a planning authority, and, accordingly, on those questions, in particular of hardship and human rights, it does not owe the same degree of deference to planning authorities as it does on the planning merits.

    THE LAW – CHAPMAN AND PORTER

  29. Mr. Drabble’s suggestion of some material difference between the ruling of the House of Lords and the reasoning of Simon Brown LJ in Porter was coupled with a general submission that the Judge’s necessary unawareness of what the House was going to say, led him into error as to his own role when deciding whether to grant injunctive relief. It is, therefore, necessary for me to refer to the decisions at both levels in that case in more detail than I would otherwise have done. I do so against the backcloth of the decision of the European Court of Justice in Chapman.

  30. Chapman was the Judges’ starting point, at paragraph 7 of his judgment, in his consideration of the law. It concerned the impact of Article 8 ECHR on the right of gypsies, within the meaning of our domestic planning law and policy, to remain on land on which they had unlawfully established themselves in breach of planning controls. The Court held that:

    1. it had to look at the matter on the instant facts of each case, not as a generality according to the level or national supply of sites for gypsies’ needs;

    2. Article 8 does not oblige a member state to provide an individual with a home;

    3. there should be a comparison in each case between, on the one hand, an individual’s Article 8 rights to respect for his private and family life and his home and, on the other, to the right of the community to environmental protection;

    4. the scarcer the availability of alternative accommodation the more weight should be given to the interference with the individual’s article 8 rights;

    5. on the other hand, if the individual has consciously established his home in a particular place unlawfully, less weight will be given to his Article 8 claim; and

    6. assessment of the competing interests is one in respect of which national authorities should have a wide margin of national appreciation.

    Such reasoning clearly applies also to the exercise of discretion under section 187B on the question whether to grant injunctive relief to quit land against travelling show-people.

  31. Our national courts have given effect to and developed the Chapman ruling in a number of cases, most importantly in the context of the issue in this case by the Court of Appeal and the House of Lords in Porter. In that case, certain gypsies succeeded in challenging the grant of injunctive relief under section 187B of the 1990 Act preventing them from occupying land in breach of planning control, on the ground that the courts had failed to consider all the factors relevant to the exercise of their discretion, in particular whether the injunctive relief sought was sufficiently necessary for the legitimate aim of protecting the environment to justify overriding the gypsies’ Article 8 rights. In the Court of Appeal Simon Brown LJ identified the key issue for consideration as the degree of deference, if any, that courts should show to conclusions and decisions of planning authorities whose decisions they were asked to review, or put another way:

    4.

    ....  the extent to which the court itself on a section 187B application should exercise an independent judgment in deciding whether or not to grant an injunction.

  32. Simon Brown LJ’s conclusion, which the House of Lords upheld, was that the answer differs according to whether the court is considering the planning merits or whether to enforce a planning decision against the defendant by injunctive relief. His reasoning is to be found in paragraphs 38 to 42 of his judgment, all of which their Lordships approved on appeal:

    38.

    .... 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 consideration of those matters is .... "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 time to remedy the breach, then the court would obviously be the readier use its own, more coercive powers ....

    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 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 gypsies from the 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 gypsies may have, still less that the court is bound to grant injunctive relief (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 gypsy’s private life and home and the retention of his ethnic identity are at stake.

    42.

    I do not pretend that it will always 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.

  33. It is hard to think how Simon Brown LJ could have explained any more clearly, or with any greater emphasis than that, the different role of the court according to whether the matter for decision turned on the merits of the planning decision or whether and how to enforce it.

  34. As I have said, the House of Lords affirmed the Court of Appeal’s decision, all of their Lordships endorsing the reasoning of Simon Brown LJ in the above paragraphs. The effect of the various speeches – set out most comprehensively in the leading speech of Lord Bingham of Cornhill, was as follows:

    1. section 187B confers on the courts an original and discretionary, not a supervisory, jurisdiction, so that a defendant seeking to resist injunctive relief is not restricted to judicial review grounds;

    2. it is questionable whether Article 8 adds anything to the existing equitable duty of a court in the exercise of its discretion under section 187B;

    3. the jurisdiction is to be exercised with due regard to the purpose for which was conferred, namely to restrain breaches of planning control, and flagrant and prolonged defiance by a defendant of the relevant planning controls and procedures may weigh heavily in favour of injunctive relief;

    4. however, it is inherent in the injunctive remedy that its grant depends on a court’s judgment of all the circumstances of the case;

    5. although a court would not examine matters of planning policy and judgment, since those lay within the exclusive purview of the responsible local planning authority, it will consider whether, and the extent to which, the local planning authority has taken account of the personal circumstances of the defendant and any hardship that injunctive relief might cause, and it is not obliged to grant relief simply because a planning authority considered it necessary or expedient to restrain a planning breach;

    6. having had regard to all the circumstances of the case, the court will only grant an injunction where it is just and proportionate to do so, taking account, inter alia, of the rights of the person or persons against whom injunctive relief is sought, and of whether it is relief with which that person or persons can and reasonably ought to comply.

  35. On the question, on an issue of enforcement, of the degree of deference that a court should accord to local planning authority’s striking of the balance between public and private interests, Lord Bingham, (with whom the other Law Lords agreed) said, at paragraph 31 of his speech, that if the local authority appears to have fully considered such matters:-

    .... 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 ....

  36. Having set out those principles, Lord Bingham, questioned what bearing Article 8 has on the approach of a court to an application under section 187B, by which I believe him to have meant what, if anything, does it add to those principles. However, having referred to the two decisions of the European Court of Justice in Buckley v United Kingdom (1996) 23 EHRR 101, and Chapman, he said:

    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 ....

  37. Thus, Lord Bingham’s reasoning, and that of the other Law Lords, in endorsing Simon Brown LJ’s analysis of the balance to be sought between public and private interest in such cases, was to recognise two stages before, or certainly by the time, injunctive relief is sought: first, to look at the planning merits of the matter, and, in doing so, to accord respect to the local planning authority’s conclusions; and second to consider for itself, in the light of the planning merits and any other circumstances, in particular, those of the defendant, whether to grant injunctive relief. Although all of their Lordships spoke in similar terms; the following passages from the speech of Lord Clyde are typical of their general approach:

    70.

    But the enforcement of the planning decisions which have been reached by planning authorities does not in my view strictly involve the exercise of a planning judgment ....

    71.

    In exercising its power the court must not re-assess matters which are the subject of a planning judgment. But that does not mean that the factors which have been considered by the authority in making their planning judgment may not be properly taken into account by the court in deciding whether or not to grant this particular remedy. In looking at the factors which weighed with the authority the court is not embarking upon a reassessment of what was decided as [a] matter of planning judgment but entering upon the different exercise of deciding whether the circumstances are such as to warrant the granting of the particular remedy of an injunction.

    73.

    Accordingly, in my view section 187B allows and has always allowed the court in the exercise of its discretion in granting an injunction to weigh up the public interest in securing the enforcement of planning policy and planning decisions against the private interests of the individuals who are allegedly in breach of planning control. In particular, I would hold that it is open to the court to consider questions of hardship, particularly as regards health, arising out of the effect on such individuals of a grant of an injunction ....

    See also per Lord Hutton, at paragraph 86 and Lord Scott of Foscote, at paragraphs 100-101 of their respective speeches.

    THE GROUNDS OF APPEAL

    GENERAL

  38. Underlying the whole of the challenge to the Judge’s order that the appellants should vacate the site is Mr. Drabble’s argument that its enforcement would violate their right to respect for their private and family life and home under Article 8. It went as follows. Travelling show-people, like gypsies, have their own particular needs within the planning system, needs, which for one or other reasons, have not been properly met. The case of these appellants reflects the national picture of under-provision and unmet need. Their lifestyle and the lack of a site suitable for their needs means that eviction from the Crouch Lane site would deprive them of their homes, damage their way of life and significantly affect their ability to work, thus engaging Article 8. Their circumstances are particularly acute in that it is common ground that there is nowhere in the South East of England for them to go. Those are matters that go to the proportionality of the decision to grant injunctive relief, and, submitted Mr. Drabble, in the light of their Lordships’ decision in Porter, require the Court to confront, when deciding whether to uphold the Judge’s decision, the question of its enforcement in the event of breach by the appellants. He maintained that the Judge wrongly conflated the issue of planning merits, which was exclusively for the planning authorities, and the issue whether the court should enforce the planning decision by injunction. More generally, he submitted that, on a proper judicial balance of the competing public and private interests, the latter outweighed the former.

  39. Mr. Simon Bird, on behalf of the Council, acknowledged that the appellants’ rights under Article 8 are engaged. However, he pointed out that the Council has considered them (on three separate occasions) as has also the Inspector and the Secretary of State, and that each, after a proper balance of the competing considerations, concluded that the public interest in their removal from the site outweighed their Article 8 and planning rights.

  40. Mr. Bird submitted that, for the following reasons, all of which have been accepted and expressed by the Inspector and the Secretary of State, there is no proper basis on which the Judge below or this Court could interfere with those decisions. The appellants’ continued occupation of the site offends against the public interest on a number of separate levels, which cumulatively demonstrate the high sensitivity of the site to illegal occupation and use of this sort.

    • First, it offends against the Green Belt, Special Landscape Area and countryside planning controls and the guidance for site requirements in Circular 22/91.

    • Second, its use and that of the narrow, winding access road of Crouch Lane by large fairground heavy goods vehicles is dangerous to other road users and a nuisance to neighbouring occupiers.

    He added that the appellants, through abuse of planning procedures, have maintained their illegal use of the site and avoided eviction from it for some three years, having already had the benefit of a year’s period of grace ordered by the Secretary of State. As to the appellants’ reliance on their need for a site and its unavailability if the South East of England, Mr. Bird pointed out that none of the appellants has a local connection, and the site is substantially larger than is necessary to meet their needs, as the Inspector and the Secretary of State found.

  41. In the light of all those matters, Mr. Bird submitted that:

    1. there were no "very special circumstances" to outweigh the inappropriateness of development in the Green Belt, quite apart from the other planning harms identified by the Inspector and confirmed by the Secretary of State; and

    2. the Judge, in deciding to grant the Council injunctive relief, had exercised his own discretion in a manner that could not be faulted as a matter of law or proportionality.

    SPECIFIC GROUNDS OF APPEAL

    Ground 1

    Excessive deference to planning decisions

  42. The first challenge is that the Judge, in exercising his power to grant injunctive relief under 187B of the 1990 Act, was too deferential to the decision of the Council on matters of hardship and the right to respect for private and family life and home under Article 8.

  43. As I have indicated, this is not a case in which the planning authorities or the Judge failed to have regard to Article 8, if and insofar as it adds anything to the exercise of discretion already required by section 187B. Here, as Mr. Bird pointed out, the evidence before the Judge showed that the Council had considered human rights issues on three occasions. The first was at the very outset in November 2000 when it compiled a human rights statement in relation to the case, and in deference to which it consented to the stay of its claim for injunctive relief. Second, it considered them again when considering the planning application. So also, as I have indicated, did the Inspector and the Secretary of State consider the human rights aspect when respectively reaching their conclusion and decision. And third, the Council considered them further when deciding whether to proceed with the application for injunctive relief. The Judge too considered all the human rights material that had been prepared by or placed before the Council.

  44. The main question on this appeal is not, therefore, whether the planning authorities have properly considered such matters and all other relevant matters, or even whether they have lawfully refused planning permission on the basis of such consideration. The question is whether the Judge, in exercise of his discretion under section 187B, exercised an original jurisdiction as required by Porter, or was unduly deferential to the planning authorities’ necessarily overlapping conclusions on the planning merits. In addressing this issue, Mr. Drabble focused on the following reasoning of the Judge in paragraph 40 of his judgment, which I have summarised in paragraph 23 of this judgment:

    The case differs from those considered by the Court of Appeal in Porter in that the conflicting public and private interests have been considered and a decision made not only by the local authority, but also by the Secretary of State. It is not suggested that the Secretary of State’s decision involved any breach of Article 8 or that his decision was in any way flawed: he decided that the Defendants’ rights under Article 8 were outweighed by the other interests that he is entitled and bound to take into account and which are within the scope of Article 8(2). The effect of his decision is that the Defendants’ continued occupation of the site is unlawful. Given that the Secretary of State took into account the matters now put forward on the Defendants’ behalf, apart from what was said by the Court of Appeal in Porter, I should have thought that, other things being equal, judicial loyalty (and not merely deference) to the lawful decisions of the elected executive branch of government requires the enforcement of that decision. An unlawfulness against which there is no sanction is a strange creature. To some extent, the question for the Court under section 187B is not simply whether to enforce a planning decision, but whether injunction is the appropriate remedy. However, neither side suggested that some other and more appropriate remedy should be tried by the local authority. On this basis, the question is enforcement or not.

  45. The flow of Mr. Drabble’s complaint under this ground was that:

    1. the House of Lords, in Porter, has since indicated more clearly than did the Court of Appeal that a court, on granting an injunction under section 187B, has an original jurisdiction;

    2. the Judge’s approach in the above paragraph and elsewhere in his judgment does not accord with their Lordships’ reasoning, in particular that of Lord Clyde, at paragraphs 70-72 (see paragraph 37 above), and of Lord Hutton, at paragraph 86, that the issues facing a court on an application for an injunction are different from those faced by a planning authority or Inspector or Secretary of State in determining an application for planning permission; and

    3. the Judge was too deferential or too "loyal" to the conclusions of the Council, Inspector and Secretary of State in their favouring, both as a planning matter and under Article 8, the public interest in enforcing the law over the private interest of the appellants in protection from hardship.

    Mr. Drabble summarised his complaint by saying that the Judge’s reasoning proceeded on the basis that, once the issue of planning permission had been finally resolved, it was the job of the court to bring the unlawful use to an end, an approach which conflicted with Porter.

  46. Mr. Bird’s response to this complaint was that the Judge’s reasoning in paragraph 40 and throughout his judgment adhered to the guidance of Simon Brown LJ in the Court of Appeal in Porter, which guidance had been fully endorsed by the House of Lords. He pointed out that the Judge rightly observed in paragraph 40 of his judgment that there had been no suggestion of unlawfulness of the Council’s, the Inspector’s or the Secretary of State’s reasoning on the planning issues or on Article 8 considerations, the latter of which, unlike in the Porter case, had been considered fully at the planning stage. It was in that context that the Judge spoke conditionally of ("judicial loyalty (and not merely deference) to the lawful decisions of the elected executive branch of government". But, said Mr. Bird, the Judge made plain throughout his judgment that the question for him was different, namely whether an injunction was appropriate in the circumstances, in particular having regard to the hardship that its grant would cause to the appellants. Mr. Bird also pointed out that the Judge had expressly qualified his remark about "judicial loyalty" in paragraph 40 by saying that it was subject to what had been said by Simon Brown LJ in Porter and that it only arose "other things being equal". In short, he submitted that it is unarguable that the Judge, in deciding to grant the injunction, blindly followed the planning decision without exercising his own discretion.

  47. In my view, this ground of appeal should fail. First, there is no substance in the suggestion that the House of Lords in Porter put the law differently or more favourably to the appellants after the Judge’s judgment than Simon Brown LJ had done before it. As I have already said - and I hope demonstrated by setting out the relevant passages and reasoning of both tribunals –both clearly indicated that decisions on planning merits are for the planning authorities and decisions on whether to enforce such decisions are for the courts taking into account all the relevant considerations, including, whether as a matter of Article 8, or otherwise, those of personal hardship to the party against whom injunctive relief is sought.

  48. Second, the Judge’s judgment, in paragraph 40, and read as a whole, demonstrates that he was well aware of and attentive to the distinction drawn by Simon Brown LJ in Porter between the planners’ role and his. In paragraph 7 he began his discussion of the law with a reference to Article 8, and, in paragraph 8, moved straight to, and set out, paragraphs 38 to 42 of Simon Brown LJ’s judgment, prefacing the latter with the following observation:

    In ....  Porter ....  the Court of Appeal considered the approach which should be adopted by the Court when considering an application for an injunction in a case such as the present. The Court held that the grant of an injunction was not a necessary or inevitable response to an application by a local authority to enforce planning restrictions. The principles applicable were stated by Simon Brown LJ .... 

    And later, in paragraph 12, having referred to the "stark question" for his decision whether the appellants should be compelled to leave the site when they had nowhere else to go, he said:

    Porter lays down that the decision of the Court must depend on the facts of the case, to which I therefore turn.

    Thereafter, as I have indicated, the Judge gave an account of the site, the relevant planning polices, the appellant’s commencement and continued use of it in deliberate defiance of the planning controls and, importantly, the appellants’ needs and other considerations. Then, after rehearsing the Inspector’s conclusions and the Secretary of State’s decision, he returned, in paragraph 40, to the issue that he had already identified was for him to resolve, namely whether or not to enforce the planning decision.

  49. As I have already indicated, my reading of paragraph 40 corresponds with that of Mr. Bird, namely that, but for the Court of Appeal’s ruling in Porter and if "all other things were equal", judicial loyalty, not merely deference, to the planning authorities’ decision would have required him, when considering enforcement, to give substantial weight to the planning decisions. His conditional reasoning is understandable since, as Mr. Bird observed in argument, there is considerable overlap in the exercises of considering a planning decision and of deciding upon enforcement where the same circumstances fall to be considered at each stage, and where all that differs at the enforcement stage may be the weight that the Judge gives to some of those circumstances. Lord Bingham was to express a similar notion in paragraph 31 of his speech in 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 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 ....

    Paragraph 40 of the Judge’s judgment, it seems to me, is just another way of putting what Lord Bingham was to say in that passage.

  50. Third, it is plain from the Judge’s treatment of the matter, following his identification of his task in paragraph 40, that he set about exercising his own jurisdiction on the issue of enforcement. He considered, in paragraphs 41 to 46, as part of the proportionality issue, the need to contemplate enforcement of any injunction granted and a number of possible alternatives to such grant. And he returned, in paragraph 47, to Chapman, observing that "desperate need" mitigates the strong factor in favour of enforcement identified by the European Court in that case where the party against whom an injunction is sought has consciously defied the planning prohibition. And, in paragraph 51, he gave his own answer to the question of the choice in the circumstances between the imposition of real hardship on the appellants and allowing them to continue in their unlawful occupation.

    In my judgment, in the circumstances of this case, the Court should grant injunctive relief. The injunction will cause great hardship to the Defendants, but it is not a disproportionate response to the continuing unlawful use of the site .... On the basis of the decision of the Secretary of State and those of the Claimant, an injunction is the appropriate relief to be granted.

  51. Sedley LJ, in granting the appellants permission to appeal, criticised this expression by the Judge of his conclusion as "deficient as a judgment on proportionality" because "as a matter of law [it] involves quite a lot more than one sees spelt out here". I do not know how much the Judge could have been expected to say by this stage of his judgment, given his comprehensive rehearsal of the relevant planning law and polices, the facts and the competing factors on which he had to exercise his discretion. There is no criticism of him for having failed to take account of all relevant matters, or of his having taken into account irrelevant matters, or of having failed accurately to record and find the extent of the damage to the environment that would flow from refusal to grant injunctive relief, or for having failed to acknowledge the hardship that the appellants would suffer from the grant of it. At the end of the day, having set out all the competing factors, he had to make his own judgment, which, though characterised by section 187B as an exercise of discretion, is as much a matter of feel as anything else. It is not an exercise that is susceptible to fine intellectual analysis or description at the point of decision. The problematic business of weighing competing interests of so different a character, to which Simon Brown LJ referred in paragraph 42 of his judgment, is to be structured and articulated in the judgment as a whole. It is from that exercise, which, in my view, the Judge properly and carefully undertook here, that, in Simon Brown LJ’s words, "the appropriate conclusion should emerge".

  52. Mr. Drabble also complained under this ground that the Judge’s approach, in paragraph 49 of his judgment (summarised in paragraph 25 above), of equating a decision to postpone the grant of relief until an alternative site could be found with a grant of temporary permission, contradicted Lord Clyde’s rejection of such analogy, at paragraph 72 of his speech.

  53. This is what the Judge said in paragraph 49:

    49.

    There is a further factor pointing against refusing an injunction until another site has been found. Who is to find it? It is unrealistic to expect the Defendants to continue to look for a site if no injunction is granted. It is unrealistic, and arguably unfair, to expect the Claimant to find them a site, certainly within its own area, which is predominantly Green Belt, but even regionally. The Defendants had no connection with the site or with the Council until they unlawfully occupied the site, which is an unsuitable site for their occupation. The shortage of sites is a regional, if not a national problem, not a local problem. In fact, however, the Claimant has searched unsuccessfully for an alternative site for the Defendants ....  The failure of the searches for an alternative site indicates that to postpone enforcement until an alternative site is found would be to postpone it indefinitely: as the Council put it, in effect to grant a planning permission in circumstances in which the Inspector and the Secretary of State considered that even a temporary planning permission was not appropriate.

  54. This is what Lord Clyde said in his speech, at paragraph 72:

    72.

    It is said that if the court was enabled to take into account matters which have been considered by the planning authority in deciding whether a particular development was acceptable in planning terms and the court refused an injunction it would in effect be granting a temporary planning permission for the development. But the analogy is not exact. The authority might be able to take fresh steps for enforcement on a more secure basis than that on which on which they had attempted to do so before. They could also seek enforcement if any change of circumstances occurred. So the defendant does not truly enjoy any protective permission. The temporary relief which he may enjoy is no different from the relief which he would achieve through a successful challenge by judicial review and the propriety of the court granting review of an invalid decision by the local authority should not be open to criticism on the ground that the court is granting some kind of temporary permission to the person who applied for review.

  55. The suggestion of Mr. Drabble is that the Judge wrongly conflated refusal of injunctive relief with the grant of temporary permission, Mr. Bird maintained that the Judge simply put it as a further factor against refusal of injunctive relief, namely that, as a matter of fact, it would have the effect of indefinite postponement. And that is how I read it, however inexact the analogy between refusal of injunctive relief and temporary planning permission. After three years in which the appellants have resolutely remained on the site in defiance of planning controls, relying on their inability to find anywhere else to live, the Judge was right, in my view, to take the view that removal of the threat of eviction would not lead to a softening of their attitude on that basis, rather it would fortify it. There was likely to be little change of the sort that Lord Clyde had in mind; the time had come for the Judge to make a decision on the question of enforcement, however stark. In my view, this complaint adds nothing of substance to the already unsubstantiated main complaint in this ground of appeal.

    Ground 2

    Consideration of fall-back remedies for the Council by way of self-help and/or criminal proceedings

  56. Mr. Drabble maintained that the Judge, in his reference in paragraph 43 of his judgment, to the possibility of the Council resorting to self-help failed to take account of its unlikelihood and also of the fact that it too could be subject to challenge on conventional judicial review grounds, as well under Article 8. He made a similar criticism of the Judge’s comparison, in paragraph 44 of his judgment, with issues that might arise in respect of a criminal prosecution for failure to comply with an enforcement notice – the important difference between them being, said Mr. Drabble, that the sanction for failure to comply with an enforcement notice is a financial penalty, whereas failure to comply with an injunction may be imprisonment. Mr. Drabble’s complaints in respect of both of these alternative remedies was that the Judge wrongly treated them as fall-back positions. This is how the Judge expressed those points:

    43.

    If no injunction is granted, it does not necessarily follow that the Defendants will be permitted to remain on the site. In theory at least, the Council could avail itself of the remedy of self-help created by section 178(1) of the 1990 Act. It has not sought to do so, since the remedy of injunction is seen to be, and clearly is, preferable to the disorder and trauma that might be involved in the exercise of that remedy. But given that it is accepted that the decision of the Secretary of State was a lawful decision, I have difficulty in seeing that the exercise by the Claimant of its powers under section 178(1) could be challenged, and it was not suggested that it could be.

    44.

    The Council could take criminal proceedings under section 179 of the 1990 Act; but in circumstances where the appeal against the enforcement notice has been dismissed, to leave it to do so would be to pass the decision on enforcement to the magistrates or district judge, who would be faced with the same arguments as have been put before me, with possibility of appeals from their decision. In a case of the importance to the parties of this one, it seems to me that the High Court is the appropriate forum.

  57. Mr. Bird submitted that this ground is "baseless", since the Judge, in paragraph 6 of his judgment, expressly acknowledged that any other sanctions would be subject to human rights defences and that, in paragraph 43, he merely stated that refusal of injunctive relief would not necessarily guarantee the appellants’ tenure and that they had not suggested they could resist a self-help remedy. As to criminal proceedings, Mr. Bird pointed out that there had been no suggestion that the Council should have prosecuted the appellant and that the Judge had expressed no view as to the prospects of such a course, merely observing that the High Court was the more appropriate forum.

  58. I have said, in paragraph 24 of this judgment, when summarising the Judge’s observations on these matters, that it seemed to me that he only mentioned them in order to show that he had considered them, with all the other relevant considerations, and to reject them as practical alternatives. Now that I have set out the Judge’s words, it will be plain that he did not regard them as practical alternatives or, as Mr. Drabble describes them, as "fall-back positions". He raised them as theoretical possibilities to show that he had considered and rejected them. In my view, this ground of appeal is also without substance.

    Ground 3

    Disproportionality under Article 8 of injunctive relief, given the hardship it would cause to the appellants.

  59. Mr. Drabble put at the forefront of this ground of appeal what he described as the "stark" facts of the case that there is no acceptable answer to the question what the appellants should do if evicted from the site, and that Porter requires the court to "face up" to the question whether it would contemplate committal in the absence of an acceptable answer. He submitted that the Judge wrongly held that the grant of an injunction would be a proportionate interference with the appellants’ Article 8 rights:

    1. given the undoubted hardship that he accepted the appellants would suffer if forced to leave the site in that they had nowhere else to go; and

    2. his agreement with the Inspector that the highway objections and impact on residential amenity of their use of the site were not substantial and not such, as on their own, to require their immediate eviction.

  60. Mr. Bird began his submissions with some criticisms of the incompleteness and inaccuracy of the ground of appeal, as drafted. He drew attention to its failure to refer to the important planning considerations of the need to protect the Green Belt, Special Landscape Areas and open countryside and to its lack of mention of the Judge’s concern, expressed in paragraph 28 his judgment, about the danger to other road users and the "substantial" safety considerations. However, his more substantial point was that the ground, and Mr. Drabble’s argument in support of it, discloses no error of law on the part of the Judge, who had carried out the relevant balancing exercise between the public interest in bringing to an end the appellant’s deliberate, serious and prolonged breach of planning controls, designed to protect sensitive countryside of the sort in which this site is located, and the hardship that eviction would cause to the appellants. He suggested that Mr. Drabble’s argument was tantamount to saying that, in such circumstances, Article 8 guaranteed the right to a home, and on that ground alone ought to outweigh the public interest at stake, an argument roundly rejected by the European Court of Justice in relation to gypsies in Chapman.

  61. In my view Mr. Drabble’s complaint under this ground is simply an invitation to the Court, seemingly in reliance on some shade of difference between the dicta of the House of Lords and of Simon Brown LJ in Porter, to substitute its own exercise of the section 187B discretion for that of the Judge. As I have said, I can find no distinction of substance between the two levels of decision, and I can find no fault with the way in which the Judge approached his exercise of discretion in reliance on Simon Brown LJ’s articulation of the law. As I have said, he has shown deference to the planning decisions, but clearly made up his own mind on the issue whether to grant an injunction against the appellants. In doing so, he has, in accordance with the principles enunciated by the European Court of Justice in Chapman, and by Simon Brown LJ in Porter, subsequently approved and largely repeated by the House of Lords, given full consideration to all the relevant considerations on both sides of the argument.

  62. As to the respective weight he gave to each of the important competing factors, the Judge clearly bore in mind the European Court emphasis in Chapman, at paragraphs 98-99 and 100-101 respectively, that Article 8 does not carry with it an entitlement to a home, and that whether there is a violation of the right under that Article to respect for a person’s home is highly fact-sensitive. Clearly the most weighty considerations in this case in favour of the grant of an injunction that the Judge had to, and did consider, were:

    1. the serious violations by the appellants of planning controls in relation to this sensitive site, in particular, the "severely detrimental impact on the openness of the Green Belt", as the Inspector put it, and the damage to the integrity the Special Landscape Area of which it is part;

    2. that they began these violations deliberately and in full knowledge of their unlawfulness; and

    3. that they have persisted in defying the law in this way for some three years.

    So much is plain from the principles derived from Chapman and Porter, in particular, the second of those considerations, in which the Court and the House respectively gave great weight for this purpose to deliberate unlawfulness. In Chapman the Court said, at paragraph 102:

    .... When considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully .... if the establishment of a home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community.

    And in Porter, Lord Bingham said, at paragraph 29, of the power granted to the Court by section 187B:

    .... the power 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 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 ...., 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, ....  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.

    See also per Lord Scott at paragraph 102.

  63. The Judge, rightly in my view, took account, in paragraphs 41 and 47 of his judgment that the appellants were, as he put it, "in planning terms, at fault (and deliberately so) in occupying the site in the first place" and that the European Court in Chapman had given considerable weight to such a circumstance.

  64. The main consideration against the grant of an injunction was the hardship that, on the evidence before the Judge, eviction would cause the appellants because they had nowhere else to go. This was and is undoubtedly a matter of great weight, to which the Judge paid considerable attention in paragraphs 12, 24-26 and 34-37.of his judgment, and which he acknowledged in paragraphs 51 and 52 respectively as a "real" and a "great" hardship. Having considered the case on its own facts and performed his own balance of the competing factors, he concluded that that, in the circumstances, the public interest should prevail and that the grant of an injunction was a just and proportionate step in protection of that interest. As I have said, with reference to Simon Brown LJ’s observations at paragraph 42 of his judgment, the striking of such a balance between competing interests so different in character is not always easy to make or to articulate. But it is plain from the Judge’s reasoning that he took the view that the combination of the seriousness of the environmental damage caused by the planning violation in respect of this highly sensitive site, and the appellants’ deliberately unlawful conduct in commencing and persisting in it for some three years outweighed the hardship that they would suffer in having to leave it. In my view, on all the material before him, that was a conclusion that he was entitled to reach. For what it is worth, it is a conclusion that I would have reached myself had I been the Judge, and it is one that I have reached in the light of all the material and submissions put before the Court in this appeal.

  65. It is a plainly a conclusion open to the court in the light of Chapman and Porter. In Chapman, although the Court allowed, in paragraph 113 of its judgment, for the possibility that there were alternative sites available to the applicant in that case (see para. 113), its statement of principle in paragraph 102 contemplated the striking of a balance in a case such as this between a deliberately unlawful and environmentally damaging planning violation and a requirement of the "offender" to leave his home. It was in the context of a striking of that balance that the Court made the observation that I have set out in paragraph 62 above, an approach that, as a matter of principle, the House of Lords has followed in Porter in, inter alia, the passage from the speech of Lord Bingham that I have set out in the same paragraph. Accordingly, and for those reasons, I would dismiss the third and final ground of appeal.

    THE RESPONDENT'S NOTICE

  66. That is sufficient to dispose of the appeal in favour of the Council. But it may be helpful for me to outline and say a few words about a further argument of Mr. Bird against allowing the appeal. It is the subject of a Respondent’s Notice and went as follows. He submitted that the argument that the appellants have nowhere else to go depends on the proposition that they must sleep in the same place as their substantial fairground equipment. Whilst that is a policy preference, it is not mandatory. If the appellants are unable to find accommodation on that basis, they should place their equipment in a plant storage facility and live separately from it in caravan parks or, if preferred, in private or public sector housing. They are not gypsies, whose peripatetic lifestyle is a large part on ethnic imperative They are business people who earn a living by moving their plant from site to site. Like other business people, they need somewhere to accommodate their plant when it is being used. If, as their modern life-style suggests, they have greater need of a permanent base throughout the year and there is no ethnic or cultural imperative to sleep with their equipment, there is no justification for their claim to be accommodated in the Green Belt, particularly on this sensitive site.

  67. It does not follow, he submitted, that, because the appellants cannot find another site which they could lawfully use for their purposes, they can choose this sensitive site and unlawfully insist on remaining there, a point that the Judge made in paragraph 48 of his judgment when he said "the question is not whether the Defendants should occupy a site, but whether they should occupy this site"; eviction from a site with multiple sensitivities, as here, does not preclude permission on some other site with fewer sensitivities.

  68. Mr. Bird also observed that:

    1. the appellants had repeatedly chosen not to give evidence of their means, though it was apparent that some, at least, could afford substantial residential accommodation;

    2. they had not expressed an aversion to living in conventional houses or, save in one or two instances, asserted that they could not afford a house anywhere in the South East of England;

    3. they had not stated why, if they could not afford to buy or rent their own homes, they could not take advantage of public sector housing;

    4. they had not claimed to have investigated the alternative of use of an ordinary storage yard; and

    5. that, of the 19 plots on the site, about half are unoccupied - the evidence before the Judge was that two (nos 16 and 17) had never been occupied; two (nos. 11 and 12) have been unoccupied since November 2000; one (no. 4) has been unoccupied since June 2001; one (no.15) was unoccupied in 2002/3; and in two (nos.6 and 7) the owners are living elsewhere.

  69. Mr. Drabble’s short response to this argument was that national policy, as carried into the Council’s local policies, recognised the traditional land-use required by travelling show-people, and that it was not for a court, or indeed this Court, by this route, to set aside such recognition.

  70. There is some force in that objection of Mr. Drabble, to which should be added the undesirability of this Court attempting to rule on a submission that has not been explored before the Judge and in respect of which there could well be conflicting evidence and other arguments based upon it. However, since the matter may arise again in another case, I should note that, as Mr. Bird observed, the appellants have based their case on the proposition that Circular 22/91 expresses a preference for mixed storage and residential uses, overlooking the facts that the Circular’s guidance must itself be read subject to other guidance, including Green Belt policy. It is no more than guidance material to the exercise of a discretion, not a policy imperative. More particularly, as Mr. Bird observed, it does not require planning authorities or the courts to act on the premise that travelling show-people must be accommodated along with their equipment.

  71. If that lifestyle cannot as a matter of practicality be accommodated in any individual case, the travelling show-people concerned may have an alternative, for example modifying their lifestyle by putting their equipment in a separate secure yard or depot when not in use. The latter may not be so threatening to their cultural identify as it might sound. As I have indicated in paragraph 5 of this judgment, over ten years ago Circular 22/91, in paragraph 2, noted the move towards permanent all-year round occupation by older members and the children of show-people’s families, the former no longer, or no longer so, peripatetic and the latter who tended increasingly to live there all year round to benefit from uninterrupted education. And, as the Select Committee, nearly ten years later, showed in paragraphs 29-30 of its June 2000 Report (see paragraph 10 above), the trend has continued towards a permanent base for some to occupy throughout the year and to which others may return from time to time as required. The Committee also noted, in paragraph 31 that "more and more show-people simply want the security of owning their own site".

  72. Whilst the Committee recorded these changes, it does not appear to have considered whether they have also modified their needs, as distinct from their preferences, for living with their equipment. Their increasing assimilation with the general public in settled living and patterns of working - including the social security and other public benefits that go with the former - could arguably carry with it a lower expectation than formerly of special concessions in planning and other environmental fields based on their former traditional way of life. Thus, full examination of such considerations in another case might show, on its facts, that eviction from a site will not, or need not, result in homelessness. But, as I have said, the outcome of this appeal does not turn on such a possibility.

  73. Accordingly, I would dismiss the appellants’ appeal.

    Lady Justice Arden

  74. I agree.

    Lord Justice Jacob

  75. I also agree.


Cases

Wrexham CBC v Berry & Berry and The National Assembly of Wales [2003] EWCA Civ 835; Chapman v UK (2001) 33 EHRR 399; South Bucks District Council v Porter [2002] 1 WLR 1359; Buckley v United Kingdom (1996) 23 EHRR 101

Legislations

Town and Country Planning Act 1990: s.178, s.179, s.187B

Article 8

Authors and other references

Select Committee on Environment, Transport and Regional Affairs, 9th Report, June 2000

Representations

Mr. Richard Drabble QC and Mr. Daniel Kolinsky (instructed by Charter & Law Solicitors) for the Appellants

Mr. Simon Bird (instructed by Sharpe Pritchard) for the Respondent


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