Coates & Ors v South Bucks DC [2004] EWCA Civ 1378

Case No A2/2004/0344[2004] EWCA Civ 1378
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(PENRY DAVEY J)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 22 October 2004
Before
LORD PHILLIPS OF WORTH MATRAVERS, MRLORD JUSTICE SEDLEYLORD JUSTICE NUEBERGER
Between
COATES & ORSAppellantSOUTH BUCKS D.C.Respondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mark Willers (instructed by Bramwell Browne Odedra, Solicitors) for AppellantJames Findlay (instructed by Messrs Sharpe Pritchard) for Respondent
JudgmentLord Phillips, MR :
[1]This appeal arises out of the invasion by a number of Gypsies and Irish Travellers in their caravans of a sensitive green belt site (‘the site’) in breach of planning regulations and an enforcement notice. The claimant (‘the Council’), as the local planning authority, sought an injunction from Penry-Davey J. Of the 42 defendants to the proceedings 5 were represented at the hearing. Of these, 4 have appealed to us. The first appellant is a Romany Gypsy and the other three appellants are Irish Travellers.[2]It has never been in issue that the Council was entitled to the injunction that it sought. The only issue before the judge was whether the obligation to comply with the injunction should be stayed pending the determination of a planning application that the Travellers proposed to make. Such an issue is easier to state than to resolve. Removal of Travellers involves interference with their rights under Article 8 of the European Convention on Human Rights to respect for their homes. The Court has to decide whether it is proportionate, in the legitimate interest of maintaining the planning regime, to inflict on the Travellers the hardship of having to move home. The approach to such a decision received the attention of the House of Lords in South Bucks District Council v Porter [2003] 2 WLR 1547.[3]Penry-Davey J gave judgment on 27 January 2004. He summarised the extensive planning history of the site. He cited at length from the decision of the House of Lords in Porter and from a subsequent decision of the Court of Appeal, each of which reviewed the Strasbourg jurisprudence. He stated that he took into account the statements of principle and the guidance as to the relevant factors contained in those authorities. He then proceeded to address, one by one, the relevant factors in the present case to which he was having regard, making relevant findings of fact in detail and with care. He then expressed his conclusions as follows:
“77. Having considered all the circumstances and the various factors that I have set out, it is clear in my judgment that the granting of injunctive relief in this case is proportionate and right, and, as I have indicated, it is conceded by Mr Willers on behalf of the defendants that the granting of an injunction is an appropriate course in this case. 78. As to the period for implementation, the issue between the parties as again I have indicated is whether that should be in a short period, for example a month, or whether it should await the outcome of any application for planning permission, although it is common ground that as yet there is still no valid registrable application in existence. 79. I have set out my conclusion on the prospects of success of any such application earlier in this judgment, and on the evidence I have heard it is clear that even if an application were made immediately, such application is likely to be rejected by the claimant and to be determined by the Secretary of State, extending any timetable by several months. Again, taking into account all the circumstances, in my judgment the granting of an injunction as sought by the claimant with a short implementation period, is proportionate and right.”
The judge granted one month’s suspension to the defendants with the exception of the second defendant, the first appellant, who was granted two months because of evidence that an elderly relative who was living with him was in poor health.[4]The appellants sought permission to appeal. On 30 March 2004 this was dismissed on paper by Carnworth LJ who remarked that the time limits allowed were within the judge’s discretion and, against the background of the case, wholly consistent with Article 8. The application was renewed orally on 28 April before Sedley LJ. The Council had not attempted to enforce the injunction pending this hearing. Sedley LJ granted permission to appeal in relation to the time for compliance allowed by the judge and ordered a stay of implementation of the injunction pending the appeal. He made this comment in relation to the judgment:
“It is in my view always desirable nowadays that where a proportionality issue is raised, the first instance judgment should determine it not only by setting out as much as is necessary to find the relevant facts and appraise the relevant law, but by assembling in some short and tabular form the elements of the case which add up to a conclusion that the measures sought are either proportionate or disproportionate. That, in spite of the great care devoted to his judgment, has not been done by Penry-Davey J.”
He went on to say that without a ‘spelt-out appraisal of proportionality’ he could not say confidently that the time limits allowed by the judge were wholly consistent with Article 8.[5]Sedley LJ granted the Council permission to apply for expedition. The Council made such an application and it was rejected. With respect to Sedley LJ I think that this was unfortunate. It has had the effect of allowing the appellants a period of grace of a total of some 8 months without resolving the issue of whether or not the judge was right to have restricted this to a period as short as one month for the majority of them. Reasons when proportionality is in issue[6]Members of this court have expressed different views as to the manner in which a judge should explain in his reasons a decision that turns essentially on a test of proportionality. Sedley LJ has, on a number of occasions, emphasised the need not merely to identify the relevant factors that weigh in each direction but to explain clearly why it is or is not proportionate to interfere with a Convention right in order to address a pressing social need; see Gallagher v Castle Vale Action Trust Ltd [2001] EWCA Civ 944; (2001) 33 HLR 72 at paragraphs 46 to 51; Lambeth LBC v Howard [2001] EWCA Civ 468; (2001) 33 HLR 58 at paragraphs 31 to 34. He returned to this theme when giving permission to appeal in Davis & Others v Tonbridge & Malling BC [2004] EWCA Civ 194. On the substantive appeal Auld LJ suggested that Sedley LJ had been over-exacting. He said this of the judge’s task at paragraph 51:
“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”.”
[7]In my judgment there is one cardinal rule. The judge’s reasons should make clear to the parties why he has reached his decision. Where he has had to balance competing factors it will usually be possible to explain why he has concluded that some have outweighed others. Even where the competition is so unequal that the factors speak for themselves it is desirable to say so. The merits of Penry-Davy J’s decision[8]The issue before the judge was whether or not to permit the Travellers to stay on the site until the resolution of a proposed planning application. Having carefully made findings as to the relevant factors the judge essentially left them to speak for themselves. Carnworth LJ thought that they showed that the judge’s decision complied with Article 8. Sedley LJ was doubtful. I consider that the material factors weighed heavily in favour of the order made by the judge. I shall take each factor in turn and explain why, incorporating findings of fact made by the judge. The nature of the site[9]The site is a field at Bellswood Lane, Iver, Buckinghamshire. The unchallenged evidence is that this is a particularly sensitive green belt site. This is relevant for the following reasons. It makes it less likely that any planning application to have a caravan encampment on the site will succeed. It also means that the encroachment that has taken place is likely to be particularly detrimental to the environment. The planning history of the site[10]The site was occupied as a gypsy caravan site in mid to late 1990, occupation which resulted in the issue of five enforcement notices. On 16 October 1991 the Council refused permission for use of the southern part of the site as a caravan site. Appeals against the enforcement notice and the refusal of permission were rejected on 21 October 1992 when the Secretary of Sate upheld the inspector’s report but extended the time for compliance to six months. A further appeal to the High Court was dismissed on 30 March 1994. On 2 April 1993 the Council refused permission for use of the northern half of the land for a caravan site, and from that there was no appeal. Temporary permission for use of the land as a caravan site was refused on 5 September 1994 and an appeal was lodged but subsequently withdrawn. On 22March 1996 the Council obtained an injunction in the High Court in respect of the southern part of the land, requiring the removal of caravans by 30 June 1996 and all related operational development by 31 December 1996. During the years 1996 to 1998 the Council removed various hard surfacing, sheds and buildings from the site.[11]This history is relevant in that it indicates that it is unlikely that a further application for planning permission will succeed where the previous application has failed at all stages. Furthermore it appears particularly objectionable that Travellers should invade a site that has already been the subject of a lengthy planning application which has been rejected. The nature of the Travellers’ conduct[12]On 30 May 2003 the Council discovered that there were caravans on the land and that the south part of the site had been divided into 12 lots. The Council’s planning officer Mr Lewis went to the site on 2 June where he met Mr Coates. Mr Coates stated that he owned the site. Mr Lewis told him that development of the site was a breach of an enforcement notice that protected it. Mr Coates said that he knew the law, that he had received legal advice from a concern called TAT (‘Travellers Advisory Team’) and that the enforcement notice was “not worth the paper it was written on”. Mr Coates subsequently acted as a spokesman for the other Travellers and the judge was satisfied that they were aware that in coming onto the site they were in breach of the enforcement order.[13]By 4 June there were 7 caravans on the site. By 8 July these had increased to 14. On 31 August bulldozers started clearing land on the north part of the site and by 1 September 5 plots on this land had been sold and a total of 12 plots was planned. Meanwhile the Council had been carefully considering its options and decided to seek injunctive relief. On 11 September Royce J made an order prohibiting any further development on the site, including bringing any more caravans or materials onto it. There were then still about 14 caravans on the southern part of the site and none on the northern part.[14]Royce J’s order was disregarded. On 26 September there were 26 caravans on the southern part of the site and substantial works had been carried out. These included laying areas of tarmacadam and the erection of a block built building. On 17 October there were 27 caravans on the southern part of the site and 10 on the northern part. On that day committal proceedings against some of the defendants were commenced. These included Mr Coates. As the numbers of caravans on the site increased and the names of their owners were obtained, court orders were made adding to the number of defendants to the proceedings. On 7 November Treacy J made an order that all save 17 caravans on the southern part of the site be removed by 9 November. On 10 November there were 16 caravans on the southern part of the site and 17 on the northern area. By 21 November the numbers had been reduced by one to a total of 32. Only over Christmas did the numbers reduce – down to 15. It was said that most of the occupants of the site had gone off to Spain for Christmas. After Christmas the numbers again increased.[15]The judge was in no doubt that committal proceedings against six named defendants, including Mr Coates, were well founded as they had committed clear and deliberate breaches of the order of Royce J. The overwhelming likelihood is that all Travellers involved in this saga were aware to some degree that they were participating in activities which were not lawful. The story that I have summarised above represents the violation of a sensitive green belt site in total disregard of the law. Flagrancy of conduct is a material factor in a case such as this, and it is hard to imagine a more flagrant series of breaches of planning law. Delay in seeking planning permission[16]Mr Coates and the earlier invaders of the site had enlisted the benefit of a Mr Weeks of Alexander & Co, who was described as a ‘planning and enforcement consultant’. He was instructed to initiate a planning application. He signally failed to submit the relevant documentation and fees. No valid planning application had been submitted by the time of the hearing before Penry-Davey J and Mr Coates had had no contact with Mr Weeks since June 2003. The judge did not accept, rightly in my view, that Mr Coates was unaware that there was no valid planning application. In the event, no valid application was made until 20 April, shortly before the hearing before Sedley LJ.[17]The judge rightly held that the appellants shared with Mr Weeks responsibility for the delay in seeking planning permission. This was a very relevant factor. The merits of the application by the Travellers for a stay of the operation of the injunction until the determination of the planning application was greatly weakened by the fact that, through their own fault, there was no planning application outstanding at the time of the hearing. The chances of success of the planning application[18]The judge’s finding in relation to this was not entirely clear. It was common ground that there was no prospect that an application to the Council for planning permission would have no initial chance of success. The only issue was whether the Secretary of State might ultimately come to a different planning decision. At paragraph 43 of his judgment he stated that he accepted the Council’s submission that an application for planning permission would have no prospect of success. Mr Findlay, for the Council, had not in fact put his case quite that high. He had accepted that success before the Secretary of State was a possibility, albeit highly unlikely. In paragraph 78 of his judgment the judge held that any application was “likely to be rejected by the claimant and to be determined by the Secretary of State, extending any timetable by several months”. In the event, the application was expressly rejected by the Council, in confirmation of a ‘deemed refusal’ 8 weeks from the date of the application. The Secretary of State has called the application in because of the sensitivity of the green belt site, but the application will not be determined until next June.[19]Counsel before us agreed that it was appropriate to proceed on the basis that the judge had found that the likelihood of any planning application succeeding was remote, but not impossible. Such a finding was, in my judgment, realistic. It accorded with the evidence of the Council’s planning officer, Mr Kyle. The appellants had obtained permission to adduce evidence from a planning expert on this issue, but had failed to do so. All that could be said in support of the submission that planning permission might be granted was that, unlike the position in 1992, there were no alternative Gypsy sites available in the County.[20]The fact that the prospects of obtaining planning permission were poor was plainly a most material factor when considering whether the Travellers should be permitted to remain until the final result. The importance of the site as the Travellers’ home[21]I now turn to factors that weigh in favour of delaying the operation of the injunction. The most powerful of these is that there is no evidence that the Travellers on the site had anywhere else to go. The other sites in Buckinghamshire were full and subject to a ten year waiting list. There was no evidence that the Travellers had looked beyond the County, but there was evidence of a general shortage of accommodation provision for Travellers in the United Kingdom.[22]Had the Travellers been living on the site for a lengthy period, had they had local links, had they all been living together as a unit of family and friends, their claims to respect for their occupancy of the site would have been the stronger. None of these was established. The evidence of where the Travellers had come from was not satisfactory.[23]There was evidence that two of the Travellers were in poor health. Mrs Coates was suffering from Alzheimer type dementia and might, in due course need residential care. The other had had a heart attack nine years ago. The judge found that there was no reason why he should not continue to live with his son, as he had done before he moved onto the site. There was evidence of a number of children on the site, some of whom had started attending the Iver Village Infants or Junior School. Conclusion[24]It is time to draw the strings together. The plight of Gypsies or others who travel in caravans with no permanent place to rest is an unhappy one. They can rightly complain that their plight reflects a failure on the part of some authorities to comply with their statutory duty to provide sites for such Travellers. That cannot, however, entitle them to stop wherever they choose and contend that their rights under Article 8 entitle them to remain. Here the factors that I have outlined make the overall picture particularly unattractive. The site chosen was a very sensitive part of the green belt. It was a site where Gypsies had already fought and lost a lengthy planning battle. It was, to their knowledge, subject to an enforcement notice. Some person or persons was or were conducting a commercial adventure, involving bulldozing the site and selling off plots, knowing that this was unlawful. Court orders were flouted. If the appellants are permitted to remain on this site despite such conduct this is likely to be seen as an open invitation to similar lawlessness. These are the considerations that weigh most with me. This is a case where the legitimate aim of maintaining a planning regime really does make it necessary to interfere with the Article 8 rights of the appellants. Added to this is the fact that the prospect of planning permission ever being granted for this site is remote.[25]For these reasons I have concluded that, far from being wrong, Penry-Davey J was right to make the order that he did. The appellants have had the benefit of an 8 month period of grace. They must now resign themselves to the need to leave the site. I would dismiss this appeal. It is not suggested that the circumstances today differ from those at the time of the hearing below. I would allow the same period of grace as Penry-Davey J, namely 2 months to the first appellant and 1 month to each of the other appellants.

Lord Justice Sedley:

[26]I accept, with hindsight, that it would have been preferable had I directed expedition of this appeal. On granting permission to appeal I gave the council liberty to apply for expedition, which they did in writing. I refused on 2 July 2004 on the grounds that the planning application was then pending and that queue-jumping had to be reserved for emergencies. As it turns out, the appeal against the deemed refusal (which had already taken place by 2 July) has been called in and will not be determined until the middle of next year.[27]But I do not think that the situation and the problem facing the court in, say, July this year would have been appreciably different from what it is today. The difference arises only if the judge’s order is upheld: in that event, as Lord Phillips MR points out, the defendants will have had 8 months’ grace to which they were not entitled. Then, as now, regard would have had to be had to the fact that a called-in planning appeal was pending, as well as to all the other factors set out in the Master of the Rolls’ judgment.[28]In turning to these, I may perhaps add this to what Lord Phillips MR has said in paragraphs 6 and 7 of his judgment. The practical significance of the cardinal rule which he sets out, and with which I respectfully agree, is well illustrated by the remainder of his judgment. Its legal importance has been plain since the seminal decision of the House of Lords in R (Daly) v Home Secretary [2001] 2 WLR 1622: see in particular Lord Bingham at paragraph 23 and Lord Steyn at paragraph 27. Proportionality is rarely a simple yes or no issue. Except in cases where the answer is obvious (for instance where no intelligible justification has been put forward, or where the need is plain and the invasion trivial) it requires a structured consideration of the questions now well established in Strasbourg jurisprudence: is the objective sufficiently important to justify limiting a basic right; is the measure sensibly directed to the objective; does it impair the right more than necessary? In this case, as in most cases, the answers are not all obvious, and they need to be reasoned out, as our judgments in this case reason them out, if the cardinal rule is to be observed. The omission from the judgment of Penry-Davey J, despite his meticulous marshalling of the history and issues, of a similar assessment of the elements going to proportionality was in my judgment an error of law.[29]The question for this court is whether these elements make it necessary to evict the appellants now (I stress the latter word), notwithstanding that that it means depriving them and their dependants of the only home they have, in the interests of the integrity of the planning regime. There is no question that if their called-in appeal is lost they will have to leave; nor that if it is won they, or some of them, will be able to stay.[30]Save as indicated below, I do not dissent from, and gratefully adopt, the facts set out in the judgment of Lord Phillips MR.[31]While it is correct that the site is green belt land, so that planning permission will be hard to obtain, two further features deserve recognition. One is that the possibility of such a grant, recently illustrated in the decision of this court in First Secretary of State v Chichester DC [2004] EWCA Civ 1248, may be slender but is not fanciful. The other is that this is the defendants’ land: they are not trespassers, and the verb “invade” has to be read with that in mind.[32]While the history of contumacious defiance both of the planning regime and of the court’s orders has placed the defendants in the worst possible position to ask for the court’s help, these people, unlawfully and defiantly though they have behaved, at least have the excuse that for 25 years local authorities throughout England and Wales failed to carry out their statutory duty to provide proper sites in substitution for the commons they were energetically ditching and fencing against entry by caravans, and that central government failed consistently to exercise its statutory enforcement powers against these local authorities: see R v Lincolnshire County Council, ex parte Atkinson (1995) 8 Admin.L.R. 529,533, cited in Chapman v United Kingdom (2001) 33 EHRR 329, §66, and in South Bucks DC v Porter [2003] 2 WLR 1547, §7. The problem of traveller homelessness today is largely a consequence of widespread breach of the law by the local and central state.[33]While the judge legitimately attached some blame to the defendants for not ensuring that their planning application was going through, I cannot agree that the omission to lodge it can be characterised as “their own fault”. It was principally the fault of the consultant, Mr Weeks.[34]Evicting families from land to which they have a good title but on which they have currently no right to live is a drastic step. The children who are at local schools will very probably go back into the cycle of innumeracy and illiteracy which continues to stand between travellers and the access enjoyed by the settled community to health and jobs. If the caravans stop on roadside verges they will be guilty of obstruction and liable to be fined and moved on. If they trespass on private land they will face immediate eviction. If they buy or rent land, they will face planning controls and enforcement action.[35]None of this is a reason for letting the defendants remain on the present site if their planning application fails: as Mr Willers has always recognised, they will have to go, whatever the hardship. But the hardship is a real factor while a planning decision remains pending.[36]The strong argument for immediate eviction is the disgraceful history, spelt out by the judge and summarised by Lord Phillips MR, of outright defiance of two orders of the court as well as of legitimate enforcement action by the council – not so much by staying put as by bringing more and more caravans and dwellers on to the land. But this seems to me to be the crux of the proportionality issue: is immediate eviction a relevant and necessary response to this contumacious conduct, or is it a punishment – mass punishment, in fact – which relates less to the rights and freedoms of others or to the prevention of disorder or crime (the material art. 8(2) factors) than to the need of the court to vindicate its own authority? The latter is a proper and entirely legitimate imperative which in equity may often be sufficient to justify an order which would not otherwise be justified. But the Convention rights do not necessarily fall out in the same way. It does not appear to me, with great respect, that either the judgment below or the other judgments in this court address this essential issue.[37]There are ways in which the court can deal with contumacious defiance of its orders – fines on those directly responsible, for example, even imprisonment or penal awards of costs – without evicting the innocent and the guilty alike from the only home they have. If the consequence is that these people will remain where they should not be until next summer, it is not the end of the world. If they obtain planning permission, their persistence will have been vindicated, although their misconduct will not have been excused. If not, they will have to go. There is no evidence of impending or actual harm to anyone else in the meantime: the harm is to the planning regime itself; but these defendants would not be the first applicants to sit out a planning dispute on the contentious site.[38]Although therefore I appreciate the force of the Master of the Rolls’ and Neuberger LJ’s reasons for upholding the judge’s order, I would for my part respectfully hold that the case is not made out that immediate eviction (again I stress that this is all that is in issue) of all the dwellers on the site is a proportionate response to the lawless conduct of the defendants. I would accordingly allow the appeal to the extent of deferring the operation of the injunction until the determination of the planning inquiry, with liberty thereafter to apply for discharge or enforcement.

Lord Justice Neuberger:

[39]I do not propose to set out the facts of this case which are clear from the judgments of the Lord Phillips MR and Sedley LJ.[40]The defendants accepted that an injunction should be granted. Accordingly the only issue before Penry-Davey J was whether to suspend the operation of that injunction for a few weeks, to give the defendants a little time to pack up and sort out their affairs, or whether the period of suspension should run until the defendants’ application for planning permission (and any appeal) had been finally determined.[41]The resolution of that issue was pre-eminently a matter for the judge; just as the grant of an injunction is a matter for the judge’s discretion, so is whether, and, if so, for how long and on what terms, to suspend the operation of the injunction. Such a decision is one with which an appellate court should, as a matter of principle, be reluctant to interfere. However, circumstances can obviously arise where an appellate court would be entitled, indeed where it would have a duty, to interfere. Where the issue is one of discretion, the categories of case in which an appellate court can interfere are where the judge has misdirected himself on a point of fact, law or principle, where the judge has failed to take into account something he ought to have taken into account, where the judge has taken into account something he ought not to have taken into account, or where the judge has reached a conclusion which no reasonable judge could, in all the circumstances, have reached.[42]Where, as here, a question of proportionality arises, because a Convention right is involved, an appellate court must be particularly careful when scrutinising the judgment. However, in such a case, there will often be room for more than one conclusion on the evidence and arguments put before the Judge. While it would be wrong to equate the decision in such a case with the exercise of a discretion, it will normally involve the balancing of various competing factors, which is primarily the function of the Judge. I do not accept the notion that, in every such case, an appellate court should review such a balancing exercise on a “right or wrong” basis, so that it is entitled, indeed, I think it would follow, obliged, to carry out that exercise afresh itself.[43]I believe that my view is consistent with the approach of Lord Bingham of Cornhill in the leading English case concerned with the exercise of the court’s powers in a case such as this, South Bucks DC -v- Porter [2003] 2 WLR 1547. In particular, in paragraph 37 of his speech, he referred to the assessment of proportionality, and said that it was “in all essentials the task which the court is in any event required by domestic law to carry out”, when applying the normal yardstick of an “justice and convenience” in connection with the grant of injunction, i.e. when the court is exercising its discretion. However, I would accept that the band, or margin, of acceptability accorded to the Judge will be, at least often, narrower on a question of proportionality, than on one of discretion. To put the point in more practical terms, an appellate court should often be less reluctant to interfere with a decision turning on proportionality, than with one which only turns on discretion.[44]Turning to the present appeal, I do not consider that this is a case where the judge can be said to have misdirected himself on the facts. As has already been observed, the judgment contains a meticulous analysis of the facts, and, where he did so, it seems to me that the judge was entitled to resolve any dispute of fact and make any inferences of fact in the way in which he did.[45]So far as questions of law or principle are concerned, it appears to me, that subject to two possible arguments, the judge cannot be said to have misdirected himself. He quoted a long passage from the speeches of Lord Bingham and Lord Scott of Foscote at paragraphs 20, 34-38 and 99-102 in Porter as well as from a more recent decision of this court. While it is obviously not impossible for a judge to set out in his judgment the correct law, and then to misapply or fail to apply it, one must at least start with the presumption that he applied the principles he quoted, particularly where, as here, the judge expressly stated that he had done so.[46]The first possible criticism is that, in paragraph 43 of his judgment, the judge expressed himself in terms which suggested that he considered that, even taking into account the possibility of an appeal to the Secretary of State, there was no prospect of obtaining planning permission for the use of the land as a caravan site. However, the way in which the judge expressed himself in paragraph 79 of the judgment (quoted by Lord Phillips MR in paragraph 3 above) seems to make it clear that he was not ruling out the possibility of such planning permission being granted on appeal, although he obviously considered it unlikely. That view is strongly reinforced by two further factors. First, if the judge had really thought that there was no prospect of planning permission being granted, then, given that it was common ground that he should grant an injunction, it would have been little short of ridiculous for him to have devoted much time, let alone a meticulous judgment, to the issue of whether to suspend the operation of the injunction until the outcome of the planning application had been determined. Secondly, it was quite clearly common ground before the judge that there was a possibility of the Secretary of State granting planning permission, although it was made clear by the council, both through its planning witness and through its counsel, that it regarded the prospects as very slight.[47]The second possible criticism is that, in the course of his judgment, the judge failed to carry out the balancing exercise required of the court in order to determine whether it would be proportionate not to suspend the operation of the injunction for the period sought by the defendants, thereby intruding more onto their rights under Article 8 of the Convention, than if the operation was suspended until the fate of the planning application was finally determined.[48]In my opinion, where, as here, the judge has given a full and careful judgment, an appellate court faced with the contention that he has not, on analysis, carried out a proper balancing exercise when considering the question of proportionality, has a potentially difficult course to steer. On the one hand, it should avoid the danger of being hyper-critical. There is no judgment which could not be improved in some way, and it would be a disservice to the law if appellate courts were too ready to interfere with a first instance decision on the basis that the judgment was less than perfect. On the other hand, where it is clear that the balancing exercise was not, or cannot have been, undertaken by the judge, or that the balancing exercise he carried out was in some way defective in a significant way, then it would be wrong in principle for an appellate court not to interfere. The interference may ultimately result in the decision itself being upheld, but it would be wrong for the appellate court not to reconsider a decision based on a defective judgment, as opposed to a decision based on a judgment which could have been better expressed.[49]In the present case, I am of the view that Penry-Davey J did, in fact, carry out the appropriate balancing exercise. He set out the facts in the first 30 paragraphs of his judgment, and discussed the applicable law in the next eight paragraphs (including the extensive citations to which I have referred). He then carefully identified and discussed the various factors which weighed with him in the ensuing 38 paragraphs, culminating in his conclusion expressed in the three paragraphs quoted by Lord Phillips MR. Given that the sole issue before him was the period for which the operation of the injunction was to be suspended, he can only have been considering those various factors for the purpose of determining that issue. In other words, the only reason for considering all the facts and factors was with a view to identifying which of the various factors, on analysis, weighed in favour, and which against, the granting of the longer period of suspension sought by the defendants.[50]I accept that it may have been better if he had then explained in a little more detail his thought processes as to why the balance ultimately fell in favour of the shorter period of suspension, but there is a limit as to how far a Judge can take an explanation of his thought processes in relation to such a balancing exercise. Sometimes, there is a decisive factor, in which case he can say so. Sometimes, there are exceptional factors which can be said to take the case out of the ordinary, and therefore to justify a particular course; in that case, he can also say so. However, on many occasions, having set out the various competing factors, there is little more that a Judge can say than that he is of the view that the factors pointing one way are stronger than the factors pointing the other.[51]Penry-Davey J formed the view that the present case was one where, having set out and discussed each of the competing factors in some detail, he could let them speak for themselves, doing little more than expressing his conclusion in the three paragraphs from his judgment quoted by Lord Phillips MR. In this connection, the last sentence of paragraph 79 of the judgment is not without significance, in that the judge referred to “all the circumstances”, which must be a reference back to “all the circumstances and the various factors that I have set out” (in paragraph 77), and he concluded that the relatively short period of suspension was not only “right” but also “proportionate”.[52]It is then necessary to consider whether Penry-Davey J reached a conclusion which no reasonable judge could have reached. In my view, he did not. The competing factors have been set out in the judgment of Lord Phillips MR and Sedley LJ (albeit with rather differing emphasis). I accept that the regrettable plight of gypsies and other travellers is attributable, to a significant extent, to the failures of national and local government. I also accept that the defendants’ Article 8 rights are an important factor, that the effect of the injunction becoming operational will cause hardship to them and their families. However, I consider that Penry-Davey J’s decision was one which he was entitled to reach in this case, bearing in mind the various factors pointing the other way, identified in the judgment of Lord Phillips MR.[53]In summary, these factors were(a) the planning characteristics and history of the site,(b) the flagrancy of the initial and continuing occupation with the knowledge of the enforcement notices,(c) the relatively prolonged and inexcusable breaches of court orders,(d) the substantial degree of responsibility on the defendants (justifiably found by the Judge) for there being, even by the date of the hearing, no application for planning permission, and(e) the absence of any believable evidence that the defendants had any local connection.[54]In these circumstances, I would dismiss the appeal.

ORDER:

[1]Appeal dismissed with costs to be assessed if not agreed.[2]Community Legal Services Assessment of Appellant’s costs with assessment above to be adjourned.[3]Paragraphs (2) and (4) of the order of Penry-Davey J of 27 January 2004 to be varied so that for 4 March 2004 insert 22 November 2004 and 2 for 4 April 2004 insert 22 December 2004.[4]Personal service of this order be dispensed with and service be deemed to be effected by service on the appellant’s solicitors.[5]Any application for permission to appeal to be in writing to be made within seven days and respondents to respond within three working days after receipt. (Order does not form part of approved Judgment)

Cited in 8 later judgments