Maidstone Borough Council v Fred King & Ors [2024] EWHC 3698 (KB)

[2024] EWHC 3698 (KB)Case No KB-2022-003122
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 rd December 2024
Before
HHJ SIDDIQUE(Sitting as a Deputy High Court Judge)
Between
MAIDSTONE BOROUGH COUNCILClaimantFRED KINGFirst DefendantPERSONS UNKNOWN INTENDING TO RESIDEDefendantAT OR CARRY OUT BUILDING OPERATIONSDefendantON THE LAND KNOWN AS WARREN LANDSDefendantTO THE NORTH OF LENHAM HEATH ROADDefendantAND EAST OF HEADCORN ROAD, SANDWAY,DefendantMAIDSTONE ME17 2NBDefendantSecond Defendant
Scott Stemp (instructed by Ivy Legal Limited) for ClaimantThe First Defendant was unrepresented and did not attendHearing Hearing dates: 16 December 2024
Approved JudgmentThis judgment was handed down remotely on 24 th December 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

HHJ Siddique (sitting as a Deputy High Court Judge) :

[1]The Claimant is the planning authority for the Borough of Maidstone and seeks a final injunction relating to the First Defendant’s occupation of land at Warren Sites, to the north of Lenham Heath Road and east of Headcorn Road, Sandway, Maidstone ME17 2NB (‘the site’). An interim prohibitory order was made on 13 October 2022 by Mr Jonathan Glasson KC sitting as a Deputy High Court Judge. The interim order has since been twice extended; on 19 December 2022 by Cotter J and on 17 June 2024 by Knowles J.[2]In June 2022, the Claimant became aware of the First Defendant’s unauthorised residential use of the site by stationing of caravans and the undertaking of clearance works. This was in breach of an extant enforcement notice issued on 21 August 1991, pursuant to section 172 of the Town and Country Planning Act 1990 (‘TCPA’). The notice prohibited use of the site as a caravan site and required removal of mobile homes and caravans.[3]On 18 August 2022, the first defendant was notified in writing that he was liable to prosecution for residing on the site in breach of the extant enforcement notice.

Preliminary Matters

[4]The First Defendant was absent from today’s hearing. Learned counsel Mr Stemp, on behalf of the Claimant, brought to my attention recent correspondence between the parties, including an email dated 2 December 2024. This was sent to email addresses for the First Defendant and to his agent, Mr Carruthers, whose name frequently appears in correspondence on behalf of the First Defendant. The email addresses accurately reflect those used in the order of Knowles J dated 17 June 2024, which provided for alternative means of service by email.[5]The Claimant’s 2 December 2024 email correctly served the bundle in accordance with the order of Knowles J. The email also reminded the First Defendant and Mr Carruthers of today’s hearing. It led to an exchange of correspondence between the Claimant and Mr Carruthers, which was copied to the First Defendant’s email. I am also mindful that no Acknowledgment of Service, nor a Defence, has ever been filed by the First Defendant. Upon my invitation today, those acting for the Claimant made enquiries by telephoning Mr Carruthers, who confirmed that neither he nor the First Defendant would be in attendance. No telephone number was available for the First Defendant. I am satisfied that the First Defendant is aware of today’s hearing and has waived his right to attend and participate. In those circumstances, I have decided that it is in the interests of justice to proceed despite the First Defendant’s absence.[6]A second preliminary issue involved the Second Defendant, described as “persons unknown intending to reside at or carry out building operations” at the site. Injunctions against such defendants are commonly known as “newcomer injunctions” and were fully and comprehensively considered by the Supreme Court in Wolverhampton City Council and others (Respondents) v London Gypsies and Travellers and others (Appellants) [2023] UKSC 47; [2024] AC 983.[7]In light of this authority, Mr Stemp notified the court that the Claimant no longer pursues an injunction against the Second Defendant. It was conceded that on the particular facts of this case there is no compelling need for such an injunction given the lack of any unauthorised encampments by gypsies and travellers, other than the First Defendant and those present upon his invitation. Additionally, the Claimant fairly and properly brought to my attention that the injunction was not advertised widely as it should have been so that those likely to be affected by it were given a fair opportunity to make representations. In short, it was conceded that the procedural safeguards were not satisfied as required by Wolverhampton City Council and others. In those circumstances, the interim injunction order against the Second Defendant is automatically discharged given the terms of the interim order (“until trial or further order”). Moreover, I formally give permission for the claim against the Second Defendant to be discontinued under CPR 38.2.

The relevant law

[8]Section 187B(2) TCPA provides that following an application for an injunction for any actual or apprehended breach of planning control, “the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.” Additionally, by virtue of section 37(1) Senior Courts Act 1981, “the court may make an order where it appears just and convenient.”[9]The leading authority on the approach the court should undertake when deciding whether to grant such an injunction is South Bucks DC v. Porter (No.1) [2003] UKHL 26; [2003] 2 AC 558. The House of Lords endorsed the following paragraph from the judgment of Simon Brown LJ in the Court of Appeal (at [20]):
“The approach to section 187B 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…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 site 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”

Factual Background

[10]Upon the First Defendant being informed that he was liable for prosecution for breach of the extant enforcement notice, on 23August 2022 he submitted a planning application for residential use of the site. This was deemed invalid as it did not meet minimum requirements for such an application. There followed further planning applications, and an application for a certificate of lawfulness pursuant to section 191 TCPA. These were all refused leading to two sets appeals, both of which were dismissed by a planning inspector. Firstly, on 23 January 2023, an appeal was dismissed regarding the application for a certificate of lawfulness for the residential use of a dwelling house on the site. Secondly, on 29 October 2024, appeals were dismissed concerning two planning applications: one for the demolition of an existing structure to build a bungalow, station residential caravans, and create associated hardstanding on the site; and the other for changing the site's use to a gypsy/traveller caravan site.

Findings

[11]I have reviewed the bundle in this case, including a recent statement from Mr Carruthers dated 8 December 2024 and the statements from Mr Neill Whittaker, a qualified planning associate employed by Ivy Legal Ltd and instructed by the Claimant. I have also viewed the accompanying photographs taken of the site during visits. The evidence is that breach of planning controls has persisted since June 2022, with unauthorised use of the site for residential purposes which has included the stationing of caravans and engineer works for creating hardstanding. A site visit on 15 June 2022 noted clearance works had taken place. On 24 June 2022, a further mobile home and touring caravan had been brought onto the site. On 1 September 2022, a large steel building frame had been set up, together with a large mobile home and a touring caravan. Photographs were taken.[12]In March 2024, there were reports of additional mobile homes being brought onto the site, in breach of the interim injunction order and planning controls. On 1 April 2024, an email was received from Mr Carruthers which confirmed that the First Defendant had brought a 4 berth caravan onto the site for a family to live in as they had recently been made homeless. On 23 May 2024, Mr Whittaker met the First Defendant on site and conducted a walk around observing four caravans, including a larger caravan that homed the Fisher family. The First Defendant stated he was aware that the family were on site in breach of the interim injunction order, but explained he was providing them with somewhere to live.[13]I am told that an application is likely to follow for contempt proceedings for the First Defendant’s breach of the interim injunction order. This is particularly pertinent given Mr Whittaker’s statement to the effect that on 24 August 2018, HHJ Simpkiss at Dartford County Court passed a suspended committal order upon the First Defendant for breach of a similar injunction relating to planning control that had been secured by Medway Council. This indicates that the First Defendant is both familiar with the planning system and its enforcement by court order.[14]On 8 October 2024, Mr Morton of Ivy Legal Ltd, attended the site and observed a static caravan, two touring caravans, and various small and medium sized commercial vehicles, light 4x4s and cars, and a number of small sheds and structures. He also observed additional hardstanding had been laid at one of the entrances and additional lighting, in the form of repurposed street lights, had been installed at several locations. On 1 November 2024, he received an email from Mrs Sue King, the Claimant’s Planning Enforcement Officer, attaching a photograph of the site taken on 27 October 2024, showing an additional touring caravan and further hardstanding having been laid.[15]The evidence therefore demonstrates ongoing and flagrant breaches since June 2022 of planning controls, an extant enforcement notice and an interim injunction order. The First Defendant has repeatedly sought authorisation for residential use of the site and for development of the same. Each of those attempts has been refused and those refusals upheld at appeal by planning inspectors. Those circumstances weigh heavily in favour of the grant of a final injunction in both the prohibitory and mandatory terms sought by the Claimant.[16]When deciding the most recent appeal on 29 October 2024, the inspector fully assessed the planning merits of the occupation and environmental impact against the hardship to the First Defendant and his family from having to move. His conclusions included the following:a. The presence of the development would materially spread the developed form of the village of Sandway along Lenham Heath Road into the countryside.b. The spread and form of the development proposed in both appeals would have a significant harmful effect on the rural character and appearance of the area.c. The overall design form of the proposed dwelling and day room would be at odds with rather than enhance the distinctiveness of the area.d. The location of the site away from services and facilities and the lack of practical alternatives to the use of a car means that the proposed dwelling or gypsy/traveller site would still be largely dependent on the use of a car, which would not help achieve a sustainable pattern of growth.e. The large extent of hardstanding coupled with the utilitarian form of the dwelling/day room and the static residential mobile homes would have a harmful visual impact on the setting of the Sandway Conservation Area and spoil its character and appearance.f. Whilst noting that site lies within an area of lakes and wetland habitat designated as a Special Area of Conservation/Special Protection Area, it had not been reasonably demonstrated that the proposed residential occupation of the site would not result in an increase in nutrient (for example through increased waste water and solids) and is more likely to have a potentially significant effect on the integrity of the habitat.g. In the absence of more detailed information on likely trip generation it would not be in the interests of highway safety to allow development with the potential for a material increase in vehicle movements at the nearby junction of Headcorn Road, Lenham Heath Road and Sandway Road (which has roads joining at an acute angle with virtually no forward visibility and with roads of single carriageway width), particularly those associated with lorries and vehicles towing caravans.[17]Whilst the above factors weighed against the First Defendant’s proposals, on the issue of the effect on protected species and biodiversity, the inspector concluded there was reasonable scope within the site to achieve an increase to biodiversity through specified planting and other habit enhancements, as had been submitted by Mr Carruthers on behalf of the First Defendant. On this issue, the inspector found in the First Defendant’s favour; however, this should be contrasted with the factors weighing against the proposals.[18]When considering the issue of the impact to the First Defendant and his family from having to move, the inspector was aware of the Public Sector Equality Duty and the First Defendant’s family’s protected characteristics as Romany Gypsies. He noted that there was a short to medium term deficit in the supply of sites for gypsies and travellers,. Specifically, he was aware first, that the Claimant could only demonstrate a 1.2 year supply of gypsy and traveller pitches against a policy requirement to hold a five-year supply; and second, there was no alternative accommodation available to the First Defendant and his family. This would mean a likely roadside existence if the proposal for the appeal site was not acceptable. He took account of the family dynamics, the number of children and gave significant weight to continuation of the children’s schooling for educational and social needs along with adult’s medical needs, which are best served by having a permanent site. He was clear to express that he placed no single factor above the best interests of any child.[19]Equally, the inspector properly took into account that requiring the family to leave the site would be an interference with their rights under article 8 of the European Convention on Human Rights as incorporated into the Human Rights Act 1998. Article 8 affords the right to respect for private and family life and home and the best interests of children. However, as he rightly, observed this is a qualified right and interference may be justified where it is lawful, in the public interest and proportionate.[20]Having undertaken a balancing exercise, his conclusion was that the site was inherently unsuitable in planning terms. His judgment was that the development proposed would cause significant harm to the rural landscape, the conservation area, highway safety and ecological matters, and was inappropriately sited for accessibility. Taken together, he assessed these harms were considerable, lasting and not outweighed by the impact upon the First Defendant and his family from having to move. The interference with the First Defendant’s article 8 rights of private and family life was therefore in the public interest, and there was no alternative less method of interference other than refusing the planning proposal and requiring the First Defendant to move. In those circumstances, he considered the dismissal of the appeal was proportionate and necessary, meaning there was no violation of the article 8 rights.

Conclusion

[21]The breach of planning controls in this case have been flagrant and remain ongoing. Given the First Defendant’s use of the site since June 2022 (and previous history with Medway Council’s planning authority), I am satisfied that the breach will continue unless restrained by final order of the court. Indeed, neither the extant enforcement notice, nor interim injunction orders, have dissuaded the First Defendant from occupying the site or from undertaking further development of the same. In those circumstances, there is very considerable force in the public interest in upholding and enforcing the statutory scheme of planning controls through the issuance of a final injunction. This is notwithstanding the hardship that will inevitably follow to the First Defendant and his family, with which I sympathise. However, given the detailed and thorough manner in which the planning inspector considered that issue, I am bound to accord respect to the balance which the planning authority has struck between public and private interests in this case. In my judgment, it is just and convenient to order a final injunction for the purpose of restraining the breach in both prohibitory and mandatory terms.