“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.”
“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 andControl 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 theTown 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 theCaravan Sites Act 1968 , they do not benefit from the duty on local authorities under that legislation to provide gypsy accommodation.”
“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.”
“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 …”
“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.”
“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.”
“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.”
“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 gipsies 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 gipsies 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.”
“… 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 …”
“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. …”
“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. ….”
“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.”
“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 ….”
“Porter lays down that the decision of the Court must depend on the facts of the case, to which I therefore turn.”
“…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 …”
“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.”
“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.”
“… 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.”
“… 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.”