Hart District Council v Benford & Ors [2006] EWHC 240 (QB)

[2006] EWHC 240 (QB)Case No HQ05X03750
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 nd February 2006
Before
THE HONOURABLE MR JUSTICE OWEN
Between
HART DISTRICT COUNCILClaimants1.ROBERT GEORGE BENFORDDefendants2.STELLA BENFORD3.STEPHEN BENFORD4.GK BENFORD & CO
Saira Kabir Sheikh (instructed by Sharpe Pritchard) for ClaimantsPeter Wadsley (instructed by Thring Townsend) for DefendantsHearing Hearing dates: 26 th January 2006
JudgmentThe Honourable Mr Justice Owen :
[1]The claimants are the local planning authority under the Town & Country Planning Act 1990 (as amended) (the Act) for the area that includes Odiham, Hampshire. The defendants are the owners and occupiers of land at Down Farm, Alton Road, Odiham. Down Farm is agricultural land situated in open countryside and bisected by the B3349 Alton Road. Since September 2003 motorcycling activities have taken place at Down Farm on a field to the west of the B3349. The claimants seek an injunction under section 187B of the Act restraining the defendants from using the land in question for more than the 14 days permitted under Part 4 Class B of the General Permitted Development Order 1995 (GPDO) and ordering them to remove mounds of earth formed on the land for the purposes of the motorcycling activities.

THE LEGAL FRAMEWORK

[2]Section 187B of the Act provides that:
"Where a local planning authority considers 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."
[3]The principles to be applied to an application for injunctive relief under section 187B of the Act have been considered by the courts on a number of occasions, in particular by the House of Lords in South BucksDistrict Council v Porter [2003] 2 ACC 558, which is authority for the following propositions. a). Although the local planning authority may consider it to be "necessary or expedient" to apply for an injunction it is for the court, in the proper exercise of its discretion, to decide whether to grant injunctive relief. The court has an original, not merely supervisory, jurisdiction. (Lord Bingham paras 27/8). b). The power to grant injunctive relief must be exercised: "…with due regard to the purpose for which the power was 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." (Lord Bingham para 29) c) It is not for the court to substitute its own view of planning policy or as to the merits of a planning issue for that of the local planning authority or the Secretary of State. (Lord Bingham para 30) But the court is entitled to form a view of the degree of environmental damage resulting from the breach and of the urgency or otherwise of bringing it to an end, and can where appropriate, consider whether on the evidence before it, an application for planning permission may succeed. (Lord Bingham para 20, where he cites with approval para 40 of the judgment of Simon Brown LJ in the Court of Appeal, and Lord Clyde at para 71) d) In granting injunctive relief the court must be satisfied that it is just and proportionate to do so.[4]Part 4 Class B of the GPDO permits:
"The use of any land for any purpose for not more than 28 days in total for any calendar year, of which not more than 14 days in total may be for the purpose referred to in paragraph B.2, and the provision on the land of any moveable structure for the purposes of the permitted use. "
B.2, so far as relevant, says:
"(b) motor car and motor-cycle racing including trials of speed and practising for these activities." 5. The defendants invited my attention to a decision of a planning inspector dated 15 July 2003 in relation to lands north of Donnington Park race circuit, Castle Donnington, Leicestershire. The decision is not of course binding, but is informative as to the application of the GPDO in analogous circumstances. The relevant paragraphs of the decision are in the following terms: "18. The enforcement notice specifically refers to use for motorcross racing, testing and practising in excess of 14 days in each calendar year. Of relevance to this is the fact that, under the provisions of Schedule 2, part 4, class B of the Town and Country Planning general permitted development order 1995 (GPDO), the temporary use of land is permitted for any purpose for not more than 28 days in any calendar year, of which not more than 14 days in total may be for the purposes of the holding of a market, or for motor car and motorcycle racing including trials of speed, and practising for these activities. Advice issued by the Officer of the Deputy Prime Minister indicates that the effect of the GPDO is to permit the use of land of up to 14 days per year for competitive motorsports events (in other words race events, including associated formal race practice sessions). Other temporary use of land for non-competitive motoring activity (including informal practising or training) would be permitted, together with any other temporary uses of the land, for up to 28 days in total in any calendar year. 19. In my view this distinction is highly significant. It plainly points to the materially different character, in land use terms, of motor racing activities, which are likely to generate a substantially more intensive use of land, with higher levels of noise, greater concentrations of people and greater levels of vehicular traffic movement to and from the site, compared to other forms of recreational vehicular use of land, whether or not organised on a commercial basis, which are considered to be sufficiently low key to be permissible as a temporary use of land, under the terms of the GPDO, for up to 28 days in any calendar year."
Neither of the parties has been able to track down the advice issued by the Office of the Deputy Prime Minister to which reference is made in paragraph 18; but it seems highly improbable that the inspector would have referred to it if it did not exist. In any event I am satisfied that there is a valid distinction to be drawn between racing and trials of speed, and practice for such activities, and non-competitive motoring activities, for the reasons articulated by the inspector in paragraph 19 of the decision.

THE PLANNING HISTORY

[6]The activities in issue began in October 2003. On 16 October 2003 the claimants served a noise abatement notice. The defendants appealed to the Magistrates court. On 21 June 2004 the appeal was resolved by agreement between the parties, in particular agreement as to an amendment to the abatement notice. The amended notice contained 14 detailed provisions including a restriction on motorcycling events on the land in question to a total of 28 per annum, restrictions as to the days and hours of use, limitation of the number of tracks to 2 to be positioned in specified locations, restriction of the activities to practice, testing and other non-race events, a prohibition on group starts, and a limitation on the number of motor-cycle riders on the course at any one time to 40. The amended abatement notice also made provision for sound barriers and the testing of motor-cycles for noise, and for the provision of a programme of events to the claimants.[7]On 12 September 2004 the defendants wrote to the claimants giving details of their provisional programme of events for the winter of 2004/5. On 27 September 2004 the claimants wrote in response saying that it had been noted that the preparations for motocross events included the construction of 'bunds', for which planning permission should have been sought before construction commenced, and informing the defendants that the claimants were prepared to allow them 14 days within which to make the necessary application. On 13 October 2004 the defendants submitted a retrospective application for planning permission for minor temporary engineering works (formation of mounds). It was refused on 9 December 2004.[8]On 11 February 2005 an enforcement notice was issued by the claimants. It identified "…the making of a material change of use to a mixed use of agriculture and use for motor sports activities" as constituting the breach of planning control, and required the defendants to "1. permanently cease the use of the land for motor sports activities, 2. permanently remove from the site all straw bales not associated with agricultural activities on the land, 3. permanently remove all ancillary structures, incidental elements (such as advertisements, cones, barrels, chairs, portable toilets) and fencing or other way markers associated with the unauthorised use of the land, 4. restore the land into a condition prior to the development taking place. Without prejudice to the generality of the foregoing this should include the removal of the track by ploughing in and restoring the land consistent to the original contours of the land." The notice took effect on 17 March 2005. It was not appealed.[9]On 18 November 2005 a further noise abatement notice was served by the claimants. It did not particularise the alleged nuisance. There has been no suggestion that the defendants are in breach of the first noise abatement notice as amended by agreement on 21 June 2004.[10]On 1 December 2005 a further enforcement notice was served by the claimants requiring the removal of "… earth formations, jumps, raised platforms and any other incidental structures and elements erected to form the layout of the course", and the restoration of the land to its condition before the development took place. The defendants have appealed to the First Secretary of State on two grounds, first that planning permission should be granted and secondly that the time given for compliance was too short. As to the first the defendants argue that planning permission should be granted as "The works are modest in scale and do not have any serious impact upon the landscape character of the locality, and The Development Plan Policy Framework, as referred to in the notice will not be prejudiced, and The transitory nature of the works for six months a year." The appeal has yet to be determined. THE ISSUES[11]The motor-cycling activities in issue are seasonal in that they take place between October and the end of February. At the end of February the land is levelled, ploughed and planted with barley. Motor-cycling activities recommence in the autumn after the crop has been harvested. It is common ground that the activities take place on more than 14 but less then 28 days in a calendar year.[12]There are two limbs to the claim for injunctive relief. First the claimants assert that the defendants, have exceeded, and are likely to continue to exceed, the use permitted under the GPDO. As to that there is an issue between the parties as to the construction and application of the GPDO, as the defendants argue that they have not exceed the use that it permits (the GPDO issue). Secondly the claimants contend that the defendants were in breach of the enforcement notice of 11 February 2005 in constructing earthen mounds on the land in October 2005 and are likely to reconstruct the mounds in further breach in October 2006. As to that there is an issue between the parties as to whether the mounds were the subject of the enforcement notice of 11 February (the enforcement notice issue). Both issues have to be resolved before the question of whether the claimants are entitled to the relief sought can be addressed.

The GPDO issue

[13]It is submitted on behalf of the claimants that the activities are "motor-cycling racing including trials of speed andpractising for these activities", and that the defendants have exceeded the permitted use for such activities of 14 days per calendar year; hence the form of order sought namely a prohibition on the use of the land "for motor-cycle related sports including motocross for more than 14 days per calendaryear without express planning permission having been granted." But it is submitted on behalf of the defendants that there has been no breach of the GPDO as the activities that have taken place are recreational riding and training of young riders, not racing or trials of speed, nor practice for such events. As the activities in question have not taken place on more than 28 days per calendar year, the defendants argue that they are not in breach of the GPDO.[14]It is therefore necessary to consider the evidence upon which the claimants seek to rely in support of their contention that the activities fall within the 14 day rather than 28 day permitted use. No direct evidence as to the nature of the activities has been adduced on behalf of the claimants; and it appears that the claimants' officials have declined invitations to attend any of the events in issue. In her second witness statement, Sarah Castle, an enforcement officer employed by the claimants, simply asserts that:
"The council considers that events witnessed in 2005 involve motorcycle racing trials of speed and/or practising for these activities and accordingly the use of Down Farm for motocross can only be undertaken for 14 days in a calendar year …"
But no factual basis is advanced as a foundation for that opinion.[15]The relevant evidence from the first named defendant, Robert George Benford, contains an emphatic denial that the land is used for racing, practising for racing, trials of speed or practice for trials of speed (see section 7 of his witness statement dated 20.1.06). At section 8 he says - 8.2. The track, as laid out, meets the ACU (Auto Cycle Union) regulations for a Test/Training event, but would not meet the requirements for any form of racing. As no race events take place, there are no events to practice for. Thus, if any racing were to take place, the ACU permit and insurance would be void. 8.3. The course is laid out so that only one rider at a time can access the course. There is no timekeeping by officials, no results available, and no record of the number of laps ridden. Whilst many bikes do carry racing numbers, others do not. We do record the riding number where there is one, as it can help to identify the rider in post accident situations. Thus, not only is there no racing or practising for racing but there are no trials for speed or for that matter practising for trials of speed.[16]Save for photographs taken from outside the land with a telephoto lens, which do not in my judgment assist on this issue, the only further evidence upon which the claimants seek to rely to counter the direct evidence from Mr Benford, is to be found in documents used by the defendants in relation to the activities in question. First the claimants point to the programme of forthcoming winter events for 2005/2006 which is headed "Test/Training Days." That heading does not assist as to the nature of the activities in question. The document also says that club membership is compulsory "No club membership – no ride"; and the second document upon which the claimants seek to rely is the membership application form for the "OFF-ROAD MOTORCYCLING ATBUTTERHILL CLUB". It includes a section headed "Acknowledgement of therisks of motor sport" and uses the words "competitors" and "competing" on a number of occasions, e.g. "motor sport is an extremely dangerous activity. It is important that all competitors think very carefully about the risks they are undertaking whenever they compete." This is plainly a pro-forma used by the club in question for activities at locations where it organises events, and which may involve competitive riding, whether with competitors racing against each other or against the clock. But again it does not in my judgment assist as to the nature of the activities that take place at Down Farm. Thirdly the claimants rely on the ACU "MOTORCYCLE SPORT EVENT ENTRY FORM" used by the defendants. It is a proforma for events run under the aegis of the ACU. In the copy exhibited to the witness statement of Sarah Castle, the box at the head of the form has been completed by the insertion of a description of the event as "TEST/TRAINING DAY", and venue as "Down Farm, Odiham, Hook, Hampshire". In addition to the description of the event the claimants point to the bottom box of the pro forma in which an entrant is invited to circle the course which he or she wishes to ride, the options being Enduro/Cross, Test/Training Course, Intermediate Course, Beginner's Oval. At paragraph 11.13 of his witness statement Mr Benford says in relation to this form – "The entry form exhibited by Sarah Castle does show a reference to 'Enduro/Cross/Test/Training course, Intermediate course and Beginner's oval'. This form was designed by Colin Boniface at the beginning of his involvement in the project and was put on the website before I had any input. It is technically inaccurate because for example the Beginner's oval has never been constructed and we have never run an Enduro/Cross Test course or events and neither do we carry out racing, trials of speed and practising for these activities. The way in which the events are organised and run are as I have set out above. In any event, racing is precluded under the terms of the abatement notice agreed with Hart in June 2004" Again I do not consider that it is to be inferred from that form that the activities carried out on the land involve racing, time trials, or practise for racing or time trials.[17]Accordingly the documents upon which the claimants seek to rely do not in my judgment undermine the evidence given by Mr Benford. The evidence before me does not support the contention that the motorcycling activities that take place on the land fall within the 14 day as opposed to the 28 day permitted use. It follows that the first limb of the claimants' case fails. The enforcement notice issue.[18]The claimants contend that when replacing the mounds in October 2005, the defendants were acting in clear breach of the enforcement notice of 11 February 2005. It is accepted on behalf of the defendants that the earth mounds in question are engineering operations within the meaning of the Act, and that they are unauthorised. But it is submitted that they were not the subject of that enforcement notice. The defendants submit first that an enforcement notice must be clear and unequivocal, given that breach may attract a criminal sanction. Secondly they point out that there is no reference to earth mounds in the notice, yet it is otherwise specific as to the structures to be removed, in particular paragraph 3 which requires the removal of "all ancillary structures, incidental elements (such as advertisements, cones, barrels, chairs, portable toilets) and fencing or other way markers associated with the unauthorised use of the land. Mr Wadsley submits that had the claimants intended the notice to refer to the mounds, they would undoubtedly have said so. He further contends that the matter is put beyond argument by the fact that the claimants served a further enforcement notice on 1 December 2005 which was specifically directed to the removal of "…earth formations, jumps, raised platforms and any other incidental structures and elements erected to form the layout of the course." That enforcement notice is under appeal; and Mr Wadsley therefore submits that the construction of the mounds does not provide any basis for the grant of injunctive relief.[19]In response Miss Saira Kabir Sheikh submits that the term "ancillary structures" at paragraph 3 of the first enforcement notice must include the mounds which were constructed for the purpose of the motorcycling activities, and that the matter is put beyond doubt by the requirement in paragraph 4 to "restore the land into a condition prior to development taking place… restoring the land consistent to the original contours of the land." She argues that the second notice was not necessary and was simply served as "belt and braces".[20]Whilst the service of the second enforcement notice suggests some uncertainty on the part of the claimants as to whether the mounds were the subject of the first notice, I am satisfied that they were. I consider that it is clear from the requirement to restore the land to its original contours, that the mounds fell within the term "ancillary structures". It follows that in my judgment the defendants were in breach of the notice in constructing the mounds in October 2005. Secondly it is clear that unless restrained by injunction, the defendants intend to reconstruct the mounds in October 2006 following the harvesting of the crop to be planted this spring.[21]I turn then to the further considerations to be borne in mind in the exercise of my discretion as to whether to grant the injunctive relief sought in relation to the mounds. It is submitted on behalf of the defendants, supported by the evidence of Mr Benford, that they are temporary structures in the sense that they are made of top soil and are removed each spring when the land is ploughed. The defendants argue that it is material to bear in mind that they are only on the land for 5 – 6 months of the year.[22]A second and related point is made on behalf of the defendants, namely that during the 5 months of the year when they are present on the land, the environmental impact of the mounds is minimal. In this context Mr Wadsley invited my attention to the photographic evidence adduced on behalf of the claimants, and in particular to the photographs showing both the mounds and the straw bales that are put in place at various points on the track to reduce noise in accordance with the agreed terms of the abatement notice. The noise abatement notice requires that the straw bales are in place when the activities permitted under the GPDO take place; and I accept the submission that the additional environmental impact of the mounds is minimal.[23]Thirdly I take account of the fact that the defendants have appealed against the second enforcement notice, the enforcement notice that is directed specifically to the mounds, and of the expert planning evidence from Mr Dance to the effect that "… my strong professional view is that there is a very good prospect of the appeal being successful."[24]Finally the activities on the land in question have continued on a seasonal basis since October 2003. An enforcement notice was not issued until February 2005, the application for injunctive relief not until 19 December 2005. That does not demonstrate a compelling sense of urgency on the part of the claimants.[25]No other grounds have been advanced for the immediate removal of the mounds. The alleged harm to the landscape from the mounds can be left to the judgment of the planning inspector.[26]Having carefully weighed the competing considerations, and whilst acknowledging that the defendants are in breach of enforcement notice, I am not persuaded that in all the circumstances it would be just and proportionate to order the removal of the mounds at this stage. The application therefore fails.