Maidstone BC v Goliea Brazil & Ors. [2023] EWHC 965 (KB)

“(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.”

“38. I would unhesitatingly reject the more extreme submissions made on either side. 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 the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, ‘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 of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission. 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 of 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 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 (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. The approach in the Hambleton case [1995] 3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998 , to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. 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 gipsy's private life and home and the retention of his ethnic identity — are at stake. 42 I do not pretend that it will always be 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.”

“Thus the Secretary of State was entitled to have regard to the personal circumstances of the Gipsies, as he did in the cases of Mr Berry and Mrs Porter. When application is made to the court under s.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 none the less 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.”

“86. Therefore, it is not for the court to act merely as a rubber stamp to endorse the decision of the local planning authority to stop the user by the particular defendant in breach of planning control. Moreover the court is as well placed as the local planning authority to decide whether the considerations relating to the human factor outweigh purely planning considerations; the weight to be attached to the personal circumstances of a defendant in deciding whether a coercive order should be made against him is a task which is constantly performed by the courts.”

“25. In our judgment, the judge's decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the court upholding the important principle that the orders of the court are meant to be obeyed and not to be ignored with impunity. The order itself indicated to the defendants the correct way in which to challenge the injunction. It contained an express provision giving the defendants liberty to apply, on prior notice, to discharge or modify the order. The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. 26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law-abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt. 27. The effect of that message would be to diminish respect for court orders, to undermine the authority of the court and to subvert the rule of law. In our judgment, those overarching public interest considerations far outweigh the factors which favour the essential suspension of the injunction so as to allow the defendants to keep their caravans on the land and to continue to reside there in breach of planning control.”

“(i) The public authority decision maker must be aware of the duty to have ‘due regard’ to the relevant matters; (ii) The duty must be fulfilled before and at the time when a particular policy is being considered; (iii) The duty must be ‘exercised in substance, with rigour, and with an open mind’. It is not a question of ‘ticking boxes’; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument; (iv) The duty is non-delegable; and (v) Is a continuing one. (vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.”

“The Council is currently able to demonstrate a five-year supply of deliverable sites but is unable to identify any alternative sites to which the occupants would be able to relocate were a court to order that they cease occupation of the Site.”

“It is likely that expected changes to the planning circumstances that are likely to occur in the period of 5 years, with the adoption of the emerging plan and subsequent site allocation Development Plan Document will significantly alter the overall balance in this case. I conclude that the considerations in support of this appeal, as listed above, taken together clearly outweigh the harm that would result to the Green Belt by reason of inappropriate development and other harm so as to justify the grant of a temporary planning permission for part of the appeal site for the period of 5 years on the basis of very special circumstances.”

“4.2. …..The temporary 5 year permission granted by way of this appeal for plot 1 at the front of the site expired on 1st June 2021. This now means that none of the development at the site benefits from planning permission.”

“7.13 The Council must also consider the personal circumstances of the Owners and Occupiers and the best interests of the Owners and Occupiers children when considering proportionality. The Owners and Occupiers personal circumstances and best interests of the children may be sufficient to make the proposed action disproportionate. 7.14 In this case not all of the personal circumstances of all of the occupants are known, indeed there appear to be new occupants of the site since a visit in February 2021 and information from the land registry set out above may indicate that further plots within the site may be occupied shortly. By way of the reasoned decision made the Planning Inspectors in the case of the two recent appeal decisions, this gives a good indication that whilst not all is known at this stage the personal circumstances of the occupiers of the site in relation to possible, health, educational and or wellbeing are unlikely to be such that they would outweigh the considerable planning related harm caused by their continued occupation of the site. With no indication that any of the occupants intend to leave the site despite the planning appeals and existing enforcement notices on the land, an Injunction in this instance which will force them to leave, is considered to be an appropriate and proportionate response.”

“7.20 It is known that there are children on plots 4 and 5 and the impact upon their best interests were considered by each Inspector with each decision. There are also children on plots 8 & 9, however their particular circumstances are currently unknown. A child previously with the family on plot 7 is no longer there as the plot is now vacant. There may also be children residing on other plots which we are not aware of. Some of the possible outcomes in respect of the best interests of any children residing on site are considered below:- Stay living on the Site: - Staying on the Site is considered to be the best outcome as it will maintain the Children’s current way of life and will cause the least amount of disruption. Live on the roadside: - Living on the roadside is not considered to be a particularly safe or secure environment for a child. There would be little access to safe recreational areas and it would potentially have a negative impact on the continuity of the Children’s’ education Live in bricks and mortar accommodation: - Living in bricks and mortar would not preserve the Children’s’ traditional way of life or links with extended family. There is no guarantee that a house would be available as housing options are dealt with on a priority basis. Live in care: - Living in care is not a desirable outcome for any child and this is considered to be the worst outcome. 7.21 Some of the children on site are of school age and likely attending local schools and so seeking removal of the occupants of the site may have an impact on their schooling and or medical needs if attending a local doctors. Both of these circumstances were considered by the Inspectors in dismissing both appeals on the site as set out above and as such this is a good indication that if the remaining children on site had similar health and educational needs, they would not be enough, either individually or cumulatively with all the other matters to be considered, to outweigh the considerable planning and environmental harm caused by the occupants remaining on site.”

“7.22 S.149 of the Equality Act 2010 provides that a public authority must, in the exercise of its functions, have due regard to the need to eliminate discrimination harassment victimisation against gypsies or travellers, advance equality of opportunity and foster good relations. This means having due regard, in particular, to the need to remove or minimise disadvantages, take steps to meet the needs of and encouraging them to participate in public life or in any other activity in which their participation by such persons is disproportionately low. Should the injunction proceedings be continued what adverse impacts would there be? Their traditional way of life leads gypsies and travellers to frequently come into conflict with other persons. Each time they camp, without permission, the relationship with the local community is strained. In this context the welfare needs of the occupants and their wish to maintain their traditional way of life and their aversion to bricks and mortar need to be considered. There is benefit in avoiding unauthorised encampments.”

“7.23 It is considered that the most likely consequence of the Owners and Occupiers being evicted is them living on the roadside. It must be considered therefore whether it would be more appropriate to wait until a supply of sites is available before evicting the Owners and Occupiers so as to avoid them having to live on the roadside … 7.26 This matter has been continuing for many years and has involved the refusal of a number of planning applications, the issuing of Enforcement Notices and Stop Notice, and an Injunction. Officers have regularly visited the Site and made it clear that the occupants are residing there unlawfully. 7.27 Officers therefore consider this to be a prolonged and flagrant breach of planning control where conventional measures to secure compliance have failed over a long period. The occupants have been aware that they have been residing there illegally since 20??, and no evidence has been presented to the Council that effort has been made to secure alternative accommodation or to seek to regularise the matter during this time. 7.29 The Council is currently able to demonstrate a five-year supply of deliverable sites but is unable to identify any alternative sites to which the occupants would be able to relocate were a court to order that they cease occupation of the Site. The hardship of requiring families with children to move off the Site must be afforded significant weight as must be the medical and welfare needs of all occupants against the importance of upholding planning legislation and protecting the environment. 7.30 Therefore taking all of the particular circumstances of this case into account and with no indication that any of the occupants intend to leave the site despite the planning appeals and existing enforcement notices on the land, an Injunction in this instance which will force them to leave, is considered to be an appropriate and proportionate response.”

“57. My views on this fourth appeal have, I confess, shifted more than once during the course of the hearing. At various stages I was inclined to accept Mr Drabble's criticisms of the all-important officer's report and of the council's decision in reliance upon it not merely to refuse planning permission but immediately to apply for an injunction. The critical question, however, is whether in the end the judge when granting injunctive relief deferred excessively to the local authority's own views as to how the balance between the competing interests fell to be struck. Looking at that question as a matter of substance rather than form I am not ultimately persuaded that he did. Rather, I have reached the conclusion that he recognised the true width of his discretion and exercised his own independent judgment in deciding that the time had finally come to bring the unlawful use of this site to an end. That was, I have to say, an entirely understandable judgment given the quite remarkable planning history of this site.”