South Bedfordshire District Council v Price & Ors [2005] EWHC 2031 (QB)

Case No HQ 0403308[2005] EWHC 2031 (QB)IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISIONVenue Royal Courts of Justice Strand London WC2A 2LLDate 23/09/2005B e f o r e :MR JUSTICE BEAN____________________
Between
South Bedfordshire District CouncilClaimantPrice and OthersDefendant________________________________________James Pereira (instructed by Sharpe Pritchard) for Claimant Alan Masters (instructed by Bramwell Browne Odedra) for the DefendantsHearing Hearing dates: 6th and 7th September 2005____________________JUDGMENT
[1]The Defendants are members of a large family who since the summer of 2000 have been occupying three mobile homes and a number of touring caravans on a plot of land, registered in the name of Mr Sam Price, called "Home Farm", in a rural location close to the edge of the village of Tilsworth in South Bedfordshire. The land is within the Green Belt and the stationing of mobile homes and caravans there for residential purposes is contrary to the Claimants' planning policies. In October 2000 the Defendants submitted a retrospective planning application which the Claimants' planning committee refused on 28th March 2001. On 26th July 2001 the Claimants issued an enforcement notice requiring the Defendants to remove the mobile homes and caravans within 6 months after the notice took effect.[2]The Defendants appealed under section 174 of the Town and Country Planning Act 1990 (as amended) against the enforcement notice, and under section 78 of the same Act against the refusal of planning permission. The Secretary of State called in both appeals, which were heard at a public inquiry on 12th March and 4th April 2002. Mr Jeremy Browne, the Defendants' present solicitor, represented the Appellant, Mr John Price.· In his report made on 3rd May 2002 the Inspector recommended that the planning permission appeal be dismissed outright and that the enforcement notice appeal be dismissed subject to extending the period for compliance to 18 months. In a decision dated 26th July 2002 the Secretary of State followed both recommendations. The time for compliance accordingly expired on 26th January 2004.[3]On 4th November 2004 Pitchers J granted an injunction ordering that the Defendants were to: i) Cease residential use of the land by 2nd December 2004; ii) Remove all caravans, mobile homes, carriages, fences, sheds and· other structure from the land by 2nd December 2004, with the exception of a single storey building of concrete block and asbestos construction; iii) Restore the land by removing all rubbish, rubble, hardcore, hard-standing, tarmac, bricks, paving-stones and all items and material brought on to the land during their occupation of it followed by re-seeding the cleared areas to grass, these steps to be completed by 20th December 2004 .. The fifth Defendant was served personally on 8th November 2004. There is no dispute that all the Defendants were notified of the order at the latest by 29th November 2004 when their solicitors, acting on behalf of all of them, wrote to the Council asking for the injunction to be set aside.[4]The Defendants have not complied with any part of Pitchers J's order but have stayed put. Indeed, in March 2005 further hardcore was laid using a mechanical digger. On 3rd May 2005 a planning application was made to site 5 static mobile homes on the land. It was rejected as technically deficient. A further application was lodged which was refused on 1st September 2005 ....[5]I have before me an application by the Claimants for suspended committal orders, and a cross-application by the Defendants to discharge the injunction or vary it by suspending its operation for a substantial period. During the first day of the hearing the issues were not entirely clear, since no skeleton argument had been lodged on behalf of the Defendants. However Mr Alan Masters, for the Defendants, was able to do so on the second morning of the hearing. He and Mr James Pereira for the Claimants are agreed that I should consider the issues in the case in the following[6]It is quite plain that the Defendants are and have been since at least the end of November 2004 in contempt. Mr Masters did not concede this, but he did not argue otherwise. He described the breach as "technical", a description which I cannot accept. There has plainly been a deliberate and prolonged failure to comply with the injunctions. I shall return to consider the reasons for non-compliance later in this judgment.

Should the injunction be discharged?

[7]As the House of Lords made clear in the leading case of South Bucks DC v Porter [2003] 2 AC 558, the grant of an injunction to restrain a breach of planning controls is a discretionary remedy. But it is not for me, on the present application to commit and counter-application to discharge, to act as' a Court of Appeal from Pitchers J. Mr Masters submitted that it was for the Claimants to establish that the injunction was properly granted. I made it clear at an early stage that the onus was the other way. The Claimants are entitled to the presumption that the injunction was properly granted until and unless the Defendants show otherwise. The Claimants did not place before me the evidence which was before Pitchers J, nor any note or transcript of his judgment. Mr Masters, after examining a copy of the bundle which was before Pitchers J, did not do so either. The result was that there was no foundation for the suggestion made in the course of his submissions that there had been a degree of nondisclosure on the application to Pitchers J.[8]There is no dispute that the Defendants did not attend, and were not represented at, the 'hearing before Pitchers J. But I am satisfied that they were given proper notice of it. If they had not been, there would no doubt have been an application by their solicitors, at the end of November 2004 if not earlier, to vary or· discharge the injunction or to seek permission to appeal. Mr Jeremy Browne of their solicitors, Bramwell Browne Odedra, had acted for them in the 2002 planning enquiry, and Mr John Price told me in evidence that if anything important arrives from the Council, he takes it to Mr Jeremy Browne for advice. In the event there was no application to vary, discharge or suspend the injunction until two days before the first hearing of the Defendants' application to commit on 4th August 2005. Mr Jeremy Browne explains the delay on the basis that legal aid was refused unless and until the application to vary could be accompanied by an application for planning permission. The planning application, in its turn, was delayed for reasons which are not wholly convincing. A planning consultant, a Mr Lugsden, was apparently appointed to assist the Defendants in early 2005 but it seems to have taken several months before a proper application was even formulated.[9]I do not underestimate the difficulties faced by litigants who cannot read or write. But the Defendants in this case are by no means helpless. They have access to advice from an experienced solicitor, a planning consultant and a town planner, Mr Philip Brown (of whom more later). Nor do I underestimate the difficulties caused by domestic circumstances such as the pregnancies of the 2nd, 4th and 10th Defendants, 'or the accident in 2003 to the 1st and 2nd Defendant's 2 year old son Hope, which has necessitated regular out-patient visits to Great Ormond Street Hospital. Nevertheless it is not open to me, ten months after Pitchers J granted his injunction, simply to go back to start and consider whether I would have done so myself in the same circumstances, least of all where the original material is not before me.[10]Mr Masters made two further points about the original injunction. The first was that the Claimants did not send a letter before action and copy it to the Defendants' solicitors. If this is correct it was unfortunate, but given the long history of the dispute it would not in my judgment have been a ground for refusing relief. Second, he raised in cross examination (though it was not foreshadowed in the evidence lodged by the Defendants) an alleged failure by the Claimants to make proper enquiries about the personal circumstances of all the members of the Price family, including educational and medical issues. I do not consider that this carries any real weight in the present case. Hardship issues were ventilated before the inspector in 2002. The Council might well have been under a duty to consider any representations made by the Defendants showing a material change of circumstances, but despite the service of many human rights questionnaires (for example on 12th Jan, 25th Jun and 10th Aug 2004) no such representations were made.[11]I conclude that the injunction was properly granted and that there 'are no grounds for its discharge on the basis of non-disclosure or otherwise. The Defendants argue in the alternative that the injunctions should be suspended for 18 months to 2 years, or until planning appeals are finally determined; the Claimants seek orders for committal suspended on terms that the Defendants comply with the injunctions within a short period.

Should the injunctions be suspended?

[12]Mr Masters argues that the Defendants have nowhere else to go; that the Claimants are at fault in not providing alternative sites; and that there is a prospect within a relatively short time of more sites becoming available, or of the Defendants' new planning application succeeding on appeal.[13]In the 2002 planning appeal the Inspector made findings as follows; i) 111. "South Bedfordshire has been a base for the Appellant [John Price] since he was a child. His father and other members of his family continue to occupy pitches on the County Council owned sites at Eaton Brae and Pepperstock. Latterly he occupied a pitch on a private site at Jockey Farm, but moved away to the appeals site because of disturbances and unsatisfactory relationships with other occupants of that site. He wanted a base so that his children would have a quieter life with access to education and medical facilities and to maintain his tradition of living as a large family group. The Appellant is concerned that if he were forced to leave the appeals site, he would be rendered homeless and would be compelled to resort to the roadside from which he would be constantly moved on. He is concerned that this would act to the detriment of the health and welfare of his children and result in unsatisfactory living conditions for all". ii) 112." There is no evidence that the Appellant sought alternative sites prior to leaving Jockey Farm. The appeals site that he bought for an agricultural purpose subsequently provided a site, albeit unauthorised, capable of providing residential accommodation for the whole of his family. Since then only a limited effort has been made, just before the enquiry, to search for suitable sites. 'This comprises a letter to the local agents that fails to mention the actual need as a caravan site, is ambiguous and is limited only to South Bedfordshire District. ..... " iii) 114. "Dismissal of the appeals might result in the family having to resort to travelling and unauthorised camping on the roadside or on private land. That would be an unsatisfactory outcome. However, given sufficient time in which to undertake a thorough search in a wider geographical area, there is no certainty that such an outcome would inevitably follow. There is an upward trend in the provision of accommodation. The extent and _ nature of the Appellant's search for alternatives, including those on private sites within and beyond the Green Belt, has not been sufficiently comprehensive or exhaustive to demonstrate that the likelihood of finding accommodation would be remote. Without such a search it remains unlikely that the Appellant would be able to reach any further conclusion about whether a site could be found to accommodate himself and his family, including his dependent married children, or whether an alternative site, acceptable to the local planning authority, would be affordable within the Appellant's means".[14]In 2002 or 2003 Bedfordshire County Council, Bedford Borough Council, Mid-Bedfordshire District Council and the Claimants jointly commissioned a report from Dr Robert Home of Anglia Polytechnic University on "Gypsy/Traveller Needs for Accommodation in Bedfordshire"; - Dr Home reported in February 2004. He recommended that the Bedfordshire local authorities should "plan to provide for an estimated need of 50 to 100 pitches of all types phased in over the next 5 years, having regard to the pattern of unauthorised encampments and sites in the area". This recommendation has been accepted by the Claimants. This means that they accept that they will have to be additional sites somewhere in Bedfordshire by early 2009, but whether in the Green Belt area of South Bedfordshire is very much more speculative. Mr Philip Brown, the planning consultant acting on behalf of the Defendants and other travellers, suggests in, a letter ,of 12th August 2005 that the Claimants have -conceded in enquiries into other sites that at least one additional site for gypsies will have to be identified within their district in the next two years. However, the evidence of the Claimants' witness; Ms Angela Whitfield, which I accept, is that where in Bedfordshire provision is to be made for the further 50 to 100 pitches is a matter for negotiation. If it is in South Bedfordshire at all, it is more likely to be in growth areas close to conurbations than in the Green Belt.[15]The Defendants intend to appeal against the most recent refusal of planning permission. Counsel are agreed that I should assume that the Secretary of State will call in any such appeal and appoint an inspector to hold an inquiry and report with recommendations. If the Secretary of State's decision is unfavourable the Defendants would have the right to lodge a statutory appeal to the Administrative Court; and possibly, if unsuccessful there, would seek permission to appeal to the Court of Appeal. These processes would take at least 18 months, possibly two years from now.[16]Mr Philip Brown, in a letter written before the recent planning permission application was refused, expressed the view that the Prices' chances of obtaining at least temporary planning permission were high. On the other hand, the 2002 application for this site was rejected by the Secretary· of State in accordance with the recommendations of the inspector; the recent application was in the event rejected by the Council; and a similar application for an adjacent site (variously known as "Evergreens" or "Kingswood Nursery") has been rejected by the Secretary of State. It therefore seems to me that the Defendants' prospects of obtaining planning permission for this site are remote.[17]Whichever way it is put, to suspend the injunction now after the Defendants have ignored the enforcement notice for four years and the injunction for ten months would be an extraordinary step. In Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] JPL 1060 the Defendant gypsies had moved on to land in breach of both planning controls and an interim injunction (granted without notice) prohibiting them from doing so. They immediately applied for planning permission. On the return date of the planning authority's application to continue the injunction the judge granted a final injunction prohibiting the use of the land for residential purposes but suspended it until the planning application was determined. The Court of Appeal discharged the suspension, except for a period of four weeks to allow the Defendants to leave the site. Mummery LJ, giving the judgment of the court, said:
"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 a 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. "
[18]It is true that in some ways the breach in the Brown case was more flagrant than in the present one. The Defendants were informed of an injunction and moved onto the land immediately afterwards. On the other hand, the breaches in the Brown case occurred over a much shorter period than in the present case, and the Defendants had not been parties to a previous planning inquiry for the' same site. The observations of the Court of Appeal apply, in my judgment, to Defendants who remain on a site in breach of an injunction as well as to Defendants who move onto a site in breach of an injunction.[19]I do not consider that the Council's acceptance of Dr Home's recommendations alters the position. If it did, it would mean that acceptance by a local authority of the need to increase sites for gypsies in the area in the foreseeable future would effectively make it impossible for that. authority to enforce planning controls against gypsies, even where a court order has been obtained This would not only "send out the wrong signal", in the words of Mummery LJ, "to others tempted to do the same and to law-abiding members of the public"; it, would also be an encouragement to local authorities to take as hard a line as possible in opposition to the provision of gypsy sites for fear of creating a loophole if they do otherwise. I do not think that this would be in anyone's best interests.[20]Mr Masters relied on the decision of Newman J in Simmons v First Secretary of State [2005] EWHC 287. The Claimant and his family were Irish travellers who had bought a site within the Green Belt in Kent and stationed caravans there. The local authority served enforcement notices; the Claimant appealed; and the Secretary of State called in the appeal. The inspector recommended that the appeal be allowed on the grounds that "in my view the unmet need for accommodation [for the gypsy community] and the authority's failure to address that need adequately, together with a lack of alternative sites available to the appellant and the importance of the educational needs of his youngest child, do in aggregate amount to very special circumstances". The Secretary of State disagreed with the Inspector's conclusion. Newman J held that the inspector was entitled to make his finding of a lack of alternative sites available to the Claimant anywhere in Kent, and that the Secretary of State had not shown what a more extensive search or efforts by the Claimant would have achieved. He therefore allowed the appeal and quashed the decision of the Secretary of State. This decision, which I am told is at present under appeal, turns in my view on its facts. In the present case there is evidence that a search outside the Green Belt area of South Bedfordshire might well yield results. Ms Whitfield referred in cross examination to a site having been identified in Mid Bedfordshire, and in another local planning enquiry report in my papers, concerning the Billington site, the inspector considered it not unreasonable of the Council to expect any need to be met elsewhere in the County. In any event the Simmons case concerns an appeal against an enforcement notice, not an argument that an injunction previously granted by the court, following an unsuccessful planning appeal, should not be enforced. The case does not therefore assist Mr Masters.[21]Finally, Mr Masters argues that the injunction should be suspended because of the' personal circumstances of the Defendants and their children. The second Defendant, Linda Price, is expecting twins: there have been complications with the pregnancy, and she is at present being treated in hospital with a view to delivery within the next four weeks or so. The 4th and 10th Defendants are expecting babies early next year. Hope Price, who was born in 2001, is attending regularly at Great Ormond Street as mentioned earlier in this judgment. Mr Pereira accepts that there must be at any rate a short period allowed for the Defendants to leave the land, and that will cover the period of Linda Price's confinement. But with that exception I do not consider that these factors justify a suspension of the injunction. In particular Hope can still be taken to Great Ormond Street from any starting point within reasonable travelling distance of Central London. If the Claimants have to wait until the Price family no longer have any pregnant mothers nor any babies or toddlers on site, they may be waiting many years. Ill health of a Defendant or a Defendant's child can of course be a reason to refuse an injunction, as the second Porter case (South Bucks Council v Porter (No.2) [2004] 1 WLR 1953) shows. But the family circumstances of these Defendants cannot justify, at this stage, suspending the injunction granted last year.

What sanctions should be imposed?

[22]Mr Masters argued that the breach of the injunctions granted by Pitchers J was "technical" and that no breach should be imposed. He relied on the decision of Sedley J in Guildford Be v Valier 20th April 1993 (unreported), affirmed by the Court of Appeal sub. nom. Guildford BC v Smith [1994]' JPL 734. In that case Buckley J had granted the Plaintiffs' an injunction against 25 Defendants restraining them from stationing caravans and or mobile homes on a plot of land alongside a railway line in breach of planning control. Sedley J found as follows:- " ... Since Buckley J made his order the Defendants have done all that they could possibly do to find a collective site for the small community which their 12 caravans and their inhabitants constitute. The site itself remains secluded and inoffensive and no further work has been done to it. Instead the Defendants have made the conscientious efforts, as I accept they are, described in the affidavit of Mr Libby ValIer.. .. Members of the family have approached 6 other County Councils to see if land can be found there on which a site can be legitimately established. These efforts have all failed. On 18th September 1992 the members of the family with their solicitor met representatives of the Plaintiff Council to see if a solution could be found. The Council could suggest no alternative site in its area It is common ground that the Defendants have nowhere else to go and the evidence satisfies me that they have made every reasonable endeavour to find an alternative site."[23]Sedley J accordingly held that there had been "no wilful or deliberate disobedience of the order of Buckley J, nor any wilful or deliberate refusal or neglect to comply with it", and that in his judgment he had no power of committal. The Court of Appeal held that there had been a deliberate contempt and that there was jurisdiction to make an order of committal (whether suspended or immediate), but that they would not interfere with the judge's exercise of his discretion to make no committal order. Steyn LJ said:- "Given that the Defendants had done all in their power to seek an alternative site, and that compliance with the order would not be within their reasonable capacity, it would be an affront to the civilised values of our society to accede to the local authorities invitation." Russell and Stoughton LJJ did not go so far but took into account the then statutory obligations of the local authority under the Caravan Sites Act 1968 and held that they could not find any error in the exercise of the judge's discretion.[24]In the present case the evidence of the Defendants' efforts to relocate is much less impressive. I have already referred to the Inspector's findings of what steps had been taken in 2002. Mr John Price told me that since then he has from time to time visited the handful of approved sites in South Bedfordshire but has always found that they are full.[25]It seems to me that cases in which the Court can decline to impose a sanction for prolonged and deliberate breach of an injunction of this kind must be rare, and that the Guildford decision rests on the "exhaustive" efforts made by the Defendants to relocate, involving fruitless approaches to six County Councils. There is no case in which it has been held that the widespread failure of local authorities to provide sufficient sites to accommodate all these who ·wish to pursue the travelling way of life is a defence to an enforcement application. Mr Masters shrank from submitting that Green Belt planning controls should be unenforceable against gypsies until and unless the day is ever reached when sites are available for all these who want them, but it seems to me that that is where his submission that there should be no sanction imposed in this case would lead.[26]No alternative sanction to suspended committal has been suggested. I would be dismayed, as any Court would be, if any of these Defendants, particularly the mothers of young children, had to be sent to prison, but the remedy is in their hands: if they comply with the Court's orders, no sanction will be applied.[27]The order in the case of each Defendant will be one of committal to prison for 12 months, suspended on terms that the Defendant leave the site by a specified date and that mandatory orders are complied with by a specified date thereafter.[28]The final question is what period of time should be allowed for compliance. In accordance with an indication I gave during the oral hearing as to how I would proceed in the event of making suspended committal orders, earlier this week I released the draft judgment to the end of the last paragraph to the parties and invited written submissions on time for compliance. The Claimants seek two months, with a further two weeks for clearance of the site. The Defendants' submissions seek in effect to re-argue the case. I am asked to suspend the orders for 18 months; or until the children's schools break up in July 2006; or until the babies due to be born· in January and March 2006 are "a bit elder and able to cope with life on the road". Other factors are urged such as the need to find new homes for animals, and the residence conditions imposed on Emma Price when recently arrested and released on bail. As to the last point, an application can no doubt be made to vary the residence condition. As to the ether factors, I have already indicated in paragraph 21 that they do not justify suspending the injunction save for a short period, which will cover the expected date of birth of Linda Price's twins (7th October) and a number of weeks thereafter.[29]In Coates v. South Bucks DC [2004] EWCA Civ 1378, a case about suspension of an injunction on first grant (ie the defendants were not in contempt), Lord Phillips MR observed at paragraph 25 that "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." The same applies in this case with even greater force. Two months is in my view sufficient for this process, with a further month for making good the site.[30]The committal orders will be suspended on terms that the defendants(a) cease residential use of the Land and remove from it all caravans, mobile homes, carriages, fences, sheds and other structures by 23rd November 2005;(b) use their best endeavours to restore the Land by removing all rubbish, rubble, hardcore, hardstanding, tarmac, bricks, paving stones and all items and material brought onto the Land during their occupation of it followed by reseeding the cleared areas to grass by 23rd December 2005. I make the same order for substituted service of this Order as was made by Pitchers J provided that a copy is also served on the Defendant's solicitors.

order

i) Are the Defendants in breach of the orders of Pitchers J and thus in contempt of court? ii) Should the injunctions be discharged? iii) If not, should they be suspended? iv) If the Defendants are in contempt, what sanction should be imposed? Are the Defendants in contempt?