Brentwood Borough Council v Ball & Ors [2009] EWHC 2433 (QB)

[2009] EWHC 2433 (QB)

Case No TLQ/09/0420

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/10/09

Before

THE HONOURABLE MR JUSTICE STADLEN

Between

BRENTWOOD BOROUGH COUNCILClaimant

BALL & OTHERSDefendant

MR ROBIN GREEN (instructed by SHARPE PRITCHARD) for CLAIMANTS

MR MICHAEL PAGET (instructed by BRAMWELL BROWNE ODEDRA) for DEFENDANT

Hearing Hearing dates: 22, 23 and 24 June 2009

Judgment

[1]This is an application by a local planning authority for an injunction pursuant to section 187 B of the Town and Country Planning Act 1990 against six named and certain unnamed Defendants requiring them to remedy alleged breaches of planning control and enforcement notices, in particular by bringing to an end their use of agricultural land as a residential caravan site. The Claimant is the Brentwood Borough Council. The six named Defendants are English Gipsies who clubbed together and purchased a plot of land know as Plot 3, Oaktree Farm, Chelmsford Road, Blackmore in Ingatestone in the Borough of Brentwood. Plot 3 consists of agricultural land and is situated in the Metropolitan Green Belt. It is also subject to two enforcement notices dated 5 February 2001 and upheld on appeal on 3 August 2001, one of which required inter alia the removal of all touring caravans from the site, the permanent cessation of the use of the site for residential purposes and reinstatement of the site to a condition suitable for agriculture. That notice is recorded on the Claimant’s register of enforcement notices kept under section 188 of the Act.

[2]The purchase of the land was completed on 12 March 2009 in the name of the first Defendant, Mr Walter Ball, although the purchase was subject to an agreement between the six named Defendants, who each contributed equally to the £80,000 purchase price, that they were to have equal beneficial interests in the land.

[3]Before purchasing the land the six named Defendants consulted a planning consultant, Mr Matthew Green, a partner in Green Planning Solutions LLP. Mr Green, a former shadow housing and planning minister for the Liberal Democrat party, is a planning consultant who specialises in advising Gipsies and appearing as an expert witness on planning appeals. He had previously advised the named Defendants, who had been looking for a suitable site in Essex, against buying a mushroom farm at Naising on the basis that, being within a flood risk area, it was unlikely to obtain planning permission. Before that he had advised them that a third site at Broxbourne had some prospect of obtaining planning permission but that fell through in circumstances to which I shall refer.

[4]In relation to Plot 3 at Oaktree Farm Mr Green advised the named Defendants that the likely outcome of an appeal, in the event of a planning application being refused by the Claimant, would be the grant of a long temporary planning permission.

[5]No doubt encouraged by Mr Green’s advice, the named Defendants decided to purchase Plot 3 Oaktree Farm. The six named Defendants and their families are all closely related to each other by ties of family or friendship. Both they and their parents before them spent many years travelling with each other. None of them ever owned their own pitch or other legal stopping place of their own. Over a period of years they all found that travelling has become much more difficult. Whereas it used to be easy to find a farmer’s field to rent or a place with a bit of hard standing to rent for the winter months, such places have become fewer and fewer and gradually they have found it impossible to spend a life permanently on the road and necessary to have a permanent base to which they could at least return and which they could call their own. Several of them would stay on land owned by other people from time to time, usually on pitches owned by friends where they could only stay until the friends needed them back or had other family members whom they wanted to occupy the relevant pitch. Their evidence was that their temporary occupation of such pitches was unlawful in that it involved doubling up in breach of planning control.

[6]In addition some of the named Defendants had young children and wanted to establish a permanent base to enable them to settle down in one school or obtain home tutoring. Because of their peripatetic lifestyle some of the children either hardly attended school at all or frequently changed school with the effect that they fell behind. One child has had a statement of special educational needs. At least one named Defendant had a family member with a serious medical condition for which an established relationship with a general practitioner and a fixed address for the purpose of receiving notice of appointments was a practical necessity.

[7]Over the long bank holiday weekend beginning on Good Friday 10 April 2009 the six named Defendants together with their families moved on to Plot 3 at Oaktree Farm. Lorries arrived at the site bringing some fourteen caravans and some 30-50 lorry loads of road planings and earth moving equipment which was used to create an encampment with a new continuous roadway laid down the middle of the site with six pitches, three on either side. Earth works were carried out to create an artificial bund or screening mound along parts of the northern and southern boundaries of the site and to level parts of the site. Timber panel and concrete fencing was erected both along the boundaries of the site and within the site dividing it into the six pitches.

[8]It is common ground between the parties that neither the various operations that were carried out over that weekend nor the use of the site as a caravan site has planning permission. In addition the use of the site as a caravan site is a breach of the change of use enforcement notice dated 5 February 2001.

[9]Prior to the purchase of the land, Mr Green had met Walter Ball and David Vinden, two of the named Defendants, on site and studied the planning history of the land. As a result he was aware of the terms both of the unsuccessful appeals against the enforcement notices in 2001 and of an unsuccessful appeal by the previous owner of the land, a Mr Udall, in April 2003 against the refusal of a subsequent application for planning permission for the retention of a mobile home, entrance gates and boundary fence. Mr Green informed Mr Ball and Mr Vinden of the two enforcement notices and advised them not to move onto the land in the absence of planning permission because to do so would breach the enforcement notices and expose them to the risk of prosecution and legal action. He also advised them that to do so would reduce the chance of a successful planning application at the local planning authority stage in that it would be likely to generate a hostile or fearful response from local people which in turn would put pressure on the local authority to turn down a planning application. This in turn would add to the expense by making the need for an appeal more likely.

[10]Despite Mr Green’s advice, the six named Defendants moved onto the land as described over the Easter weekend without any application for planning permission having been made or granted. On 14 April 2009, the day after the Easter holiday, an enforcement officer employed by the Claimant served temporary stop notices on the occupiers of the site by handing individual envelopes to the named Defendants and by tying a copy of the notice onto the posts at the entrance to the site requiring the occupiers to stop the formation of hard standing and hard surfacing and prohibiting any further caravans being stationed on the site.

[11]On 21 April 2009 these proceedings claiming injunctive relief were issued by the Claimant. On the same day a retrospective application for planning permission was submitted by Mr Green’s firm on behalf of Walter Ball acting on behalf of the six named Defendants to the Claimant electronically via its Planning Portal. On 1 May 2009 in compromise of an application brought by the Claimant for an interim injunction requiring the Defendants to remove their caravans from the site and cease using it for residential purposes, the six named Defendants gave undertakings to the court not to carry out any further work on the site, not to allow any further caravans to be brought onto the site beyond the 14 caravans already there and not to allow any further hard core or other materials to be brought on to the land in connection with the formation of any further areas of hard standing or access ways until trial. An order to similar effect was made against the unnamed Defendants. On 15 June 2009 Mr Ball’s planning application was refused by the Claimant and on 18 June 2009 an appeal was lodged against that refusal. The hearing of that appeal by an inspector appointed by the Secretary of State is currently due to take place on 6, 7 and 9 October 2009, although the Claimant has asked for an adjournment to enable Mr Green, its counsel in this application, to appear on its behalf.

The Site

[12]Plot three lies in an area of Green Belt approximately 1.3 kilometres north east of the village of Blackmore. It measures approximately 1.35 hectares in size, is located to the north of Chelmsford Road from which it is served by a track and is bounded on all sides by agricultural land. Together with two adjoining plots east of the track, Plots 1 and 2, it originally formed part of a larger agricultural holding. The history and current characteristics of the three plots are relevant to the issues raised in this application and in particular to the exercise of the judicial discretion conferred on the Court by section 187 B.

[13]In May 2000 a Mr Udall purchased Plot 3 and moved a touring caravan onto the plot. Mr Udall was a Gipsy then aged 64. His younger daughter, Mrs Betts, lived with her husband and three young children in a mobile home on Plot 1. Mr and Mrs Betts were also Gipsies. On Plot 2 there was another mobile home which was occupied by a Mrs Corrie. Mrs Corrie is not a Gipsy. Neither the mobile home belonging to Mr and Mrs Betts on Plot 1, nor the mobile home belonging to Mrs Corrie on Plot 2 was authorised by planning permission. Both Mr Betts and Mrs Corrie applied for planning permission to enable them to have and reside in mobile homes on respectively Plots 1 and 2. Both applications were refused and appeals against refusal were dismissed by the same inspector in December 2000 with the period for compliance in each case being extended under 19 December 2001. In both cases enforcement notices were upheld and the Council pursued prosecution proceedings against both Mr Betts and Mrs Corrie. Despite those proceedings the mobile homes were not removed from Plots 1 and 2 and remained thereon both at the time of the purchase by the named Defendants of Plot 3 and at the time of the hearing of this application. At no time has the Council issued proceedings against Mr Betts or Mrs Corrie to seek injunctions restraining their continuing breaches of planning law and in particular of enforcement notices.

[14]In his decision rejecting Mr Udall’s appeals against the enforcement notices dated 5 February 2001 in respect of Plot 3, on which he had erected a shed, access track and laid an associated hard standing and placed touring caravans, the inspector in August 2001 stated that the development significantly detracts from the rural character and appearance of the area and from the openness of the Green Belt. He described it as a particularly open site and although the road side trees provide some screening during summer months he stated that he could well understand the concerns of the Council as to the prominence of the site in winter where the trees would have shed their leaves. While fully appreciating that there were hardship and difficult domestic considerations he viewed the harm to the Green Belt as serious and did not believe that the personal factors relating to Mr Udall outweighed the very cogent policy and environmental objections. Those objections he considered could not properly be overcome by attaching planning conditions such as the suggested limit of two caravans only, one to be occupied by Mr Udall and the other by Mr and Mrs Betts and their children.

[15]On 31 January 2002 Mr Udall applied for planning permission to allow him to retain a mobile home, with which he appears to have replaced the touring caravans following his earlier unsuccessful appeal, together with entrance gates and a boundary fence. The application was refused by notice dated 25 March 2002 and his appeal against that refusal was dismissed by an inspector on 30 April 2003. The inspector stated:

“The surrounding rural area is mainly farm land, with the open landscape enhanced by hedgerows and wood lands. Build development is sporadic, typically comprising farmstead and long established dwellings scattered along Chelmsford Road and the network of country lanes. The mobile home, the small out buildings and hard surfaces have given the land a domestic appearance. The hedgerow and trees along the road frontage provide some screening but even so the change in local character is visible from the road and the wider area. The development has resulted in a loss of openness and forms a harmful encroachment in the countryside. It therefore detracts from the most important attribute of the Green Belt and conflicts with one of the purposes of including land within the Green Belt”

Referring to the decisions of the inspectors in relations to Plots 1 and 2 he stated:

“In each case the inspectors found the domestication that had taken place caused serious harm to the Green Belt.”

[16]The inspector also referred to the fact that planning permission had been granted on appeal in 1999 for the stationing of a mobile home and caravan in the Lillypurts Site to the west of Oaktree Farm. The development had been considered visually intrusive but the needs of the Gipsy family in terms of education and health and the difficulty of finding any suitable rural location had been considered to be very special circumstances. He referred to an additional site called Wenlock’s in the surrounding area where planning permission had been granted to a Gipsy family which had an association with the Borough and whose children had educational and special educational needs. That site was apparently well screened.

[17]As in the case of Mr Betts on Plot 1 and Mrs Corrie on Plot 2, Mr Udall remained in his mobile home with his outbuildings, gate and fence in breach of planning law and in particular of the enforcement notices from 2003 until he sold Plot 3 to Mr Walter Ball on 12 March 2009. As with Mr Betts and Mrs Corrie, at no time did the Council apply for injunctions to restrain continuing breach of the enforcement notices.

The statutory framework

[18]Section 187 B of the Town and Country Planning Act 1990 (“the Act”) provides:

“(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 section (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. (3) Rules of court may provide for such an injunction to be issued against an person whose identity is unknown. (4) In this section “the court” means the High Court or the County Court.”

[19]Breach of planning control is defined in section 171 A (1) (a) of the Act as “carrying out development without the required planning permission;or. …” Section 55(1) of the Act provides that “development” means “the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any building or other land.”

[20]Section 179 of the Act provides:

“(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried out on, the person who is then the owner of the land is in breach of the notice. (2) Where the owner of the land is in breach of an enforcement notice shall be guilty of an offence .. .. (4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on. (5) A person who at any time after the end of the period for compliance which the notice contravenes subsection (4) shall be guilty of an offence. … (8) A person guilty of an offence under this section shall be liable – (a) on summary conviction to a fine not exceeding £20,000; (b) on conviction on indictment, to a fine.”

[21]It is accepted by the six named Defendants that their conduct in causing or permitting road planings to be laid across the site to create a hard surface, concrete and wood fencing to be erected, the site to be divided into 6 pitches and 14 caravans to be stationed on the site for the purpose of residential occupation constituted a breach of planning control as defined by section 171 A of the Act. As a matter of jurisdiction, that is a sufficient basis to confer on the court jurisdiction to grant an injunction under section 187 B for the purpose of restraining breaches of planning control, subject of course to the critical question of whether and how the statutory discretion should be exercised. It is also the case that by occupying touring caravans on Plot 3, the six named Defendants are in breach of the enforcement notice dated 5 February 2001 which required the permanent cessation of use of Plot 3 for residential purposes and reinstatement of the land to a condition suitable for agriculture. It is the Council’s case that by residing in caravans on Plot 3 the six named Defendants and the other unnamed occupiers of the site are also committing a continuing criminal offence under section 179 of the Act. However proof that they are committing a continuing criminal offence under section 179 is not a necessary precondition for the jurisdiction to grant an injunction under section 187 B.

The Council’s case

[22]The Council submits that by placing 14 caravans and various vehicles on Plot 3, erecting extensive fencing and covering the ground in planings the Defendants are causing harm to the openness of the Green Belt and its character and appearance. They submit that the named Defendants have engaged in a substantial well organised deliberate and criminal breach of planning control. It is submitted that they did so over the Easter weekend so as to prevent the Council from taking effective pre-emptive measures and that at least some of them did so in full knowledge that there was an existing enforcement notice and having earlier obtained planning advice from Mr Green who had studied the site’s planning history. In relation to the Defendants’ outstanding appeal against the refusal of Mr Ball’s application for planning permission, the Council submits that it is highly unlikely that any sort of planning permission will be granted and that in any event even if it is wrong in that submission, that is not a reason for refusing an injunction. An injunction should be granted to uphold planning law and to restore the status quo ante. If the appeal if successful, the injunction could then be discharged and the Defendants allowed to revert to their residential use of the land.

The Defendants’ case

[23]The Defendants accept that by bringing planings and caravans onto Plot 3 they breached planning law and that by continuing to reside in the caravans they are in continuing breach of planning law. They also accept that by continuing to reside in the caravans they are in breach of the enforcement notice dated 5 February 2001. However they challenge the Council’s characterisation of their conduct as a cynical and calculated breach of criminal law and an attempt to pre-empt the Council from taking effective pre-emptive measures. It is their case that they acted responsibly in liaising with local authority officials over a period of several months in seeking to identify suitable land to purchase on which they could be given planning permission to set up a permanent site for their caravans. They suspected that their proposed purchase of a site in Broxbourne fell through because a Council official informed the seller that they were Gipsies. In choosing the site at Plot 3 they were acting on the advice of a Council official from Epping Forest who had advised them that they had good prospects of getting planning permission east of the M11. Throughout their search they took advice from Mr Green and in deciding to acquire Plot 3 they acted in reliance on his advice that they were likely to obtain at least temporary planning permission for a caravan site. Although most of them were aware of the existence of the enforcement notice, they were aware that there were mobile homes on Plots 1, 2 and 3 and that no injunction proceedings had been taken by the Council to enforce compliance with the notices in respect of any of Plots 1, 2 and 3 or to remove the occupiers therefrom and they assumed that having tolerated the presence of residential mobile homes on the Plots for several years the Council would take no such action against them. Their long term reason for seeking a permanent site for their caravans was the need to have a permanent base for a variety of reasons. These included the fact that their previous pattern of life involved illegal and sometimes dangerous temporary occupation of other Gipsy sites or road lay-bys; the educational needs of their children and the medical needs of members of their families. More immediately the decision to move on to Plot 3 without awaiting the outcome of a planning application flowed from the fact that some of the families had been occupying a Gipsy site in Tylers Cross on which there had been alarming outbreaks of serious violence including the use of guns which required intervention by armed Police which caused them to fear for the safety of themselves and their children.

[24]The Defendants submit that there is a likelihood, and certainly no less than a real prospect, of their planning appeal being successful. In particular they submit that their personal circumstances are such as to constitute the very exceptional circumstances required to outweigh the presumption against granting planning permission for Gipsy sites in the Green Belt. That being so they submit that any injunction would be premature. At worst the application should be adjourned or any order for an injunction should be suspended to await the outcome of the planning appeal. At best the injunction should be refused. In addition and in any event, given the lack of any history of on going or repeated deliberate flouting of planning law or criminal breaches of enforcement notices, the strength of the personal circumstances argument and the damaging consequences to them and their families in the event of an injunction being granted, they submit that no injunction should be ordered. On paper the Defendants submitted that a factor which points against an injunction is that the Council’s decision to apply for an injunction constituted unlawful racial discrimination but in oral argument this point was not pursued with any vigour.

The approach to the exercise of the discretion under Section 187 B

[25]In the case of South Bucks District Council v Porter

[2003] 2AC 558

all five Law Lords approved the following guidance given by Simon Brown LJ in the Court of Appeal which was set out in paragraph 20 of Lord Bingham’s speech:

“The approach to section 187 B 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 187 B 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 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 187 B(I) 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 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 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 (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(I) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the pubic interest objective sought – here the safeguarding of the environment – but also that is 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 articulate way, the appropriate conclusion should emerge.”

[26]Lord Hutton considered that the factors stated by Simon Brown LJ properly reflect the considerations which in Chapman v United Kingdom 33 EHRR 399 the European Court of Human Rights stated should be taken into account and that a court which follows the guidance given by him will be acting compatibly with

article 8 of the European Convention

of Human Rights. The European Court held in Chapman that:

“103. A further relevant consideration, to be taken into account in the first place by the national authorities, is that if no alternative accommodation is available, the interference [with the Claimant’s right under article 8 to respect for his or her home] is more serious than where such a accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.”

[27]Further guidance is to be found in other passages of their Lordships’ speeches in the Porter case. Lord Bingham traced the antecedents of section 187 B, quoting the report of Mr Robert Carnwath QC as he then was which led in due course to section 187 B: “The enforcement system therefore cannot be too rigid. There will always be difficult cases where there is a need to balance the interests of enforcement against the individual circumstances of a business or individual. The system needs to be flexible enough to accommodate such cases, while providing the teeth to secure effective action where it is justified. There will always be disagreement as to where the line is to be drawn. ... There are likely to be two sets of circumstances where [the right to apply for an injunction] will be especially useful. First it can provide an urgent remedy in cases where there is a serious threat to amenity, to deal with either a threatened breach (before a stop notice can be served) or an actual breach (for example, where there are problems in preparing an effective enforcement and stop notice in time). Secondly it can provide a stronger back-up power in cases where the existing remedies have proved, or are thought likely to be, inadequate.” (paragraph 15).

[28]Lord Bingham quoted with apparent approval as throwing light on what was officially understood to be the effect of section 187 B the following extract from a circular issued by the Department of the Environment:

“7. The decision whether to grant an injunction is always solely a matter for the court, in its absolute discretion in the circumstances of any case. Nevertheless it is unlikely that the court will grant an injunction unless all the following criteria are satisfied - … (3) injunctive relief is a commensurate remedy in the circumstances of the particular case…Even when all these criteria are satisfied, the court may decide that the circumstances of the case do not, on the balance of convenience, justify granting an injunction. If an injunction is granted, the court may suspend its effect until a specified later date.”

[29]Lord Bingham quoted a subsequent circular in which the word ‘proportionate’ was substituted for the word ‘commensurate’ and the ‘absolute’ discretion of the court was again referred to. He then quoted from a Department of the Environment, Transport and the Regions Good Practice Guide for Local Authorities: “…in assessing what is called ‘the balance of convenience’ in the decision whether to grant injunctive relief on the LPA’s application, the court will have to weigh the public interest (which the LPA represents) against the private interests of the person or people whom the LPA seek to restrain. This differs from, for example, the process of an enforcement appeal where the decision maker is concerned with whether the appeal should succeed on its legal or planning merits. And, even if the court concludes that an interlocutory injunction should be granted, its effect may be suspended for a specified period so that the defendant has time in which to make suitable alternative arrangements for whatever activity is to be restrained. The court may require the plaintiff (the LPA) and the defendant to appear in person at the end of an initial period of suspension of an injunction, so that the balance of convenience can be reassessed.” (Paragraph 17).

[30]Lord Bingham emphasised that the court is not obliged to grant an injunction because a local authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction and so makes application to the court (paragraph 29):

“The discretion of the court under section 187 B like every other judicial discretion 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 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. 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 (City of London Corporation v Bovis Construction Limited [1992] 3ALL ER 687, 714) 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 straight forward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendants.”

[31]Lord Bingham pointed out that it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded. “But the court is not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show.” (Paragraph 30)

[32]In similar vein Lord Scott pointed out that “in deciding whether or not to grant an injunction under section 187 B the court does not turn itself into a tribunal to review the merits of a planning decision that the authority or the Secretary of State, has taken. …the Court could not in my opinion properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken. If the Court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation has become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions.” (paragraph 100).

[33]Similarly Lord Hutton considered “that a judge should be alert to ensure that he does not embark on the determination of an issue which would, in reality, involve him in the assessment of planning considerations which lie within the ambit of the functions of the local planning authority.” (paragraph 92).

Lord Bingham added: “When application is made to the court under section 187 B, 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 planning authority has struck between and 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, and there is force in the observation attributed to Vaclav Havel, no doubt informed by the dire experience of central Europe: “The Gipsies are a litmus test not of democracy but of civil society” (quoted by McCracken and Jones, counsel for Hertsmere in the fourth appeal “Article 8 EHCR Gipsies and Some Remaining Problems after South Buckinghamshire [2003] JPL 382, 396, fn 99).” (paragraph 31).

[35]Both Lord Bingham and Lord Steyn emphasised in their own words the importance of the point made by Simon Brown LJ (and approved by all 5 Law Lords) that a 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. That is a critical issue which arises not only at the stage of a subsequent application for committal for breach of an order but at the prior stage of considering whether an order should be made in the first place. “Since a severe financial penalty may be imposed for failure to comply with an enforcement notice, the main additional sanction provided by the grant of an injunction is that of imprisonment. The court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment” (per Lord Bingham at paragraph 32 emphasis added). “The local authorities argue that, while personal hardship may not be taken into account by the court considering the grant of an injunction, the court will be able to do so in considering what penalties to impose in committal proceedings. The concession is, of course, inevitable. But it results in the situation that, even in a case where the judge would not contemplate sending a defendant to prison for a breach, he must nevertheless impose an injunction carrying that threat. Such an approach does not advance the rule of the law. It tends to bring the law into disrepute. In the Court of Appeal Simon Brown LJ found the right balance…” (per Lord Steyn at paragraph 53).

[36]Linked to the latter point is the explicit conclusion by all 5 Law Lords that, as held by Simon Brown LJ in the passage approved by them all, the prohibition against the granting of an injunction which a Judge would not at the time it is granted be prepared to enforce by imprisonment not only entitles but requires the judge in considering whether and how to exercise the discretion conferred on him by section 187 B to assess and weigh in the balance the hardship if any which would be occasioned to a defendant and his family if required to move, necessarily including therefore the availability of suitable alternative sites. Thus Lord Bingham stated: “But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply… the Judge was wrong to regard all questions of hardship as “entirely foreclosed” by the Mole Valley 90 LGR 557 and Hambleton

[1995] 3 PLR 8

decisions, as the Court of Appeal rightly held (paragraph 43).” (paragraphs 32, 41).

[37]Lord Steyn explicitly endorsed the approach outlined in Simon Brown LJ’s judgment in which he held that the Judge must consider for himself all questions of hardship for the defendant and his family if required to move necessarily including the availability of suitable alternative sites. He added:

“Even if it had previously been possible to ignore great or marked hardship in the exercise of discretion under section 187B – a hypothesis which I do not accept – such an approach is no longer possible. Sometimes, perhaps more often than not, the interference with a Convention right may be justified on public interest grounds. But effective protection of a Convention right requires the court to approach the matter in a structured fashion in accordance with the principle of proportionality. What in the context of the present cases required was explained by Simon Brown LJ in terms on which I cannot improve. He said, at page 1378: “Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought – here the save guarding 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.”

Plainly, the protection of the relevant Convention right would not be effectively protected by leaving it to local authorities acting under section 187 B (1) to consider matters of hardship under article 8. It follow that, whatever their earlier status, the reasoning in the Mole and Hambleton decisions are no longer authoritative or helpful.” (paragraph 58).

[38]Lord Clyde held that section 187 B (2) “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. In that regard I do not consider the observations contrary to that view in Mole Valley District Council v Smith 90 LGR 557 and more particularly in Hambleton District Council v Bird [1995] 3 PLR to be sound.” (paragraphs 73).

[39]Lord Clyde identified as two considerations giving particular force to the proposition that an injunction might be an inappropriate remedy in two of the cases before the House of Lords(1) the fact that the respondents owned the land in question and that while the two pieces of land lay respectively in an area of Green Belt or Green Barrier it was not suggested that there was any urgent environmental problem and

(2) the fact that in each case there were problems of health and lack of alternative accommodation made more problematic as the respondents were gipsies where considerations of humanity might be particularly acute owing to their particular traditions and lifestyle (paragraph 75). He held 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 (paragraph 73).

[40]Lord Hutton held that the issue at the heart of the Porter case was what Lord Scarman described in Westminster City Council v Great Portland Estates PLC

[1985] AC 661

as “the human factor”. He held that Simon Brown LJ had been right to hold that the human factor should be taken into account in deciding whether planning control should be enforced by the granting of an injunction. He rejected the submission on behalf of the local authorities that it is not appropriate for a court to take into account and weigh against purely planning considerations the hardship which the defendant would suffer if he or she were forced to move from the site. : “It is clear that section 187 B gives the court an original jurisdiction which it is to exercise as it thinks right. Subsection (2) states that the court “may” grant such an injunction as the court “thinks appropriate” for the purpose of restraining the breach. 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 court.” (paragraph 86).

[41]Lord Hutton singled out as two of the factors which he held Simon Brown LJ had been right to hold should be taken into account by a court hearing a section 187 B application “the extent to which [the local authority] 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” as well as “questions of the family’s health and education.” (paragraph 88).

[42]Lord Scott agreed with Lord Steyn’s criticism of the two Court of Appeal authorities Mole Valley and Hambleton relied on by the local authorities. “The hardship likely to be caused to a defendant by the grant of an injunction to enforce the public law will always, in my opinion, be relevant to the court’s decision whether or not to grant the injunction. In many, perhaps most, cases the hardship prayed in aid by the defendant will be of insufficient weight to counter balance a continued and persistent disobedience to the law. There is a strong general public interest that planning controls should be observed and, if not observed, enforced. But each case must depend on its own circumstances.” (paragraph 102).

[43]In so holding he rejected the proposition that “once the planning situation is clear and apparently final it is not open to the court to take into account the personal circumstances of the defendant and the hardship that may be caused if the planning controls are enforced by an injunction.” “As Lord Wilberforce said in the Gouriet case, the jurisdiction to grant such injunction is one of great delicacy and to be used with caution.” (paragraph 101).

[44]Finally Lord Scott held that “of particular importance of course will be whether or not the local planning authority can establish not only that there is a current or apprehended breach of planning control but also that the ordinary statutory means of enforcement are not likely to be effective in preventing the breach or bringing it to an end. In a case in which the statutory procedure of enforcement notice, prosecution for non-compliance and exercise by the authority of such statutory self-help remedies as are available had not been tried and where there was no sufficient reason to assume that, if tried, they would not succeed in dealing with the breach, the local planning authority would be unlikely to succeed in persuading the court that that grant of an injunction would be just and convenient.” (paragraph 99).

[45]In my judgment there are a number of factors emerging from the guidance given by the House of Lords in the Porter case which are material to the discretion which I am required to exercise on this application.(1) The principal purpose of the jurisdiction to grant an injunction under section 187 B is to promote compliance with planning law. The power exists above all to permit abuses to be curbed and urgent solutions provided where they are called for. There is an important public interest in securing compliance with and if necessary enforcement of planning law.

(2) An injunction is the most draconian measure available to promote that end. In the ordinary case, absent particular factors pointing to the need for immediate injunctive relief, it is available as a last resort when the other remedies of enforcement notice and prosecution have been tried and found wanting, or at least where there is good reason to believe that if deployed they will be of no effect. The granting of an injunction is more likely to be proportionate where that is the case than where it is not.

(3) The greater the adverse environmental impact of the breach or anticipated breach of planning law sought to be restrained, the greater will be the case for granting an injunction. The planning history of the site is likely to be a relevant factor.

(4) Before deciding to apply for an injunction under section 187 B, it is not sufficient for the local planning authority to conclude that it is the only means of preventing an actual or anticipated breach of planning law. It is in addition necessary for it to consider fully whether there are any countervailing issues of hardship for the defendant flowing from the grant of an injunction and whether the merits of an injunction outweigh any such hardship. Where it has done so and concluded that it is nonetheless necessary or expedient to seek relief an injunction is more likely to be granted since the court must accord respect to the balance which the local planning authority, as the democratically accountable body, has struck between public and private interests. Where it has not done so, an injunction is less likely to be granted.

(5) The discretion under section 187 B is a wide one. At its heart, in a case where hardship is alleged, lies what may be a delicate balancing exercise between the public interest in upholding planning law and protecting the environment and the private interests of the defendant in avoiding undue hardship as a result of being forced, under threat of potential imprisonment, to leave his place of residence together with his family.

(6) In weighing this balance the court is not bound by the balance struck by the local authority, assuming that it weighed these two factors in the balance. It is not the function of 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. The court is as well placed as the local planning authority to decide whether the considerations relating to what Lord Hutton called the human factor outweigh purely planning considerations.

(7) An injunction should only be granted if, in the judgment of the court, having regard to all relevant circumstances relating both to the actual or anticipated breach of planning control and to the personal situation of and any hardship to the defendants and his family, it would be a proportionate remedy. Proportionality requires that an injunction should not impose an excessive burden on the individual whose private interests are at stake, in the case of a gipsy his private life and home and the retention of his ethnic identity.

(8) The following factors may point in favour of granting an injunction: where there has been a history of prolonged or flagrant breach of planning control and persistent non-compliance by the defendant or evidence that he has played the system by wilfully exploiting every opportunity for prevarication and delay; where conventional enforcement measures have failed over a prolonged period to remedy the breach by the defendant of planning control; where there is some urgency in the situation which is sufficient to justify either the pre-emptive avoidance of an anticipated breach of planning control or the immediate removal of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public; where there is clear evidence of suitable alternative accommodation for the defendant and his family.

(9) The following factors may point against granting an injunction: where there has not been a history of prolonged breach of planning control, persistent non-compliance or playing of the system by wilfully exploiting every opportunity for prevarication and delay by the defendant; where conventional enforcement measures against the defendant have not been taken and found wanting; where there is no urgency in the situation (for example because of a dangerous or particularly offensive development or one which is causing a significant nuisance or disruption to neighbours or members of the public) which is sufficient to justify the compulsory removal of the defendant and his family from a site where they are residing; where the local planning authority failed fully or at all to consider or weigh in the balance the personal circumstances of the defendant and his family and any hardship which might flow from the grant of an injunction; where there is a real prospect of a successful appeal against the refusal of planning permission; where the effect of forcing the defendant and his family to leave the site would or might be to cause hardship or danger to the defendant and his family; where there is no or no clear evidence of suitable alternative accommodation for the defendant and his family.

(10) Unless at the time of giving his/her judgment, the judge would be prepared if necessary to contemplate sending the defendant(s) to prison in the event of a subsequent breach of the injunction, no injunction should be ordered. The court would not be prepared to do so without considering all questions of hardship to the defendant and his family including the availability of suitable alternative accommodation if required to move. The House of Lords did not explicitly identify what other factors the court can or should take into account in considering whether it would be prepared to contemplate sending the defendant(s) to prison in the event of a subsequent breach. In my judgment the court can and should take into account all matters which are material in the particular circumstances of the case. These could include the circumstances leading up to and reasons for the actual or anticipated breach of planning law, the defendant(s)’ record of compliance with or defiance of planning law, the extent and gravity of any environmental harm caused or likely to be caused by the breach of planning law sought to be restrained and the prospects of success of any outstanding or proposed application for planning permission or appeal against refusal of planning permission.

(11) In particular the more flagrant and persistent has been the record of ignoring or defying enforcement notices or prosecutions, the greater is likely to be the case for granting an injunction. The less serious and the less persistent such a record has been, the weaker is likely to be the case for granting an injunction.

(12) It is not the function of the Court to second guess or go behind planning decisions already taken by the local planning authority or the Secretary of State on the advice of an inspector.

(13) It is, however, legitimate for the Court when considering whether it is just and convenient to exercise the discretion to grant an injunction and if so when and on what terms to consider whether there is a real prospect that planning permission will be granted or an appeal against the refusal of planning permission will be successful.

(14) In such a case the court has the power to decide to adjourn the application for an injunction until after the result of a planning appeal is known. In my judgment it also has the power to suspend any injunction granted until and unless planning permission is refused or an appeal is unsuccessful. Alternatively in an appropriate case in my view the Court can take its conclusion that there is a real prospect of planning permission being granted into account as a relevant factor when deciding whether to exercise the discretion to grant an injunction at that time. It may be a factor contributing to a decision that the Court would not currently be prepared to contemplate send the defendant to prison in the event of breach of an injunction; or it may be that the court considers that one of the factors outweighing the detriment to the environment and/or the rule of law inherent in refusing an injunction is the hardship or detriment which might flow from requiring the defendant and his family to leave the site with all the consequent disruption to his family life in circumstances where the outcome of an application for planning permission or an appeal against its refusal might hold him entitled to reside on the site and/or carry on the conduct sought to be restrained.

[46]As Simon Brown LJ pointed out a peculiar difficulty of the task of striking the necessary balance between the public interest in protecting the environment and upholding planning law and the private interest of gipsies to maintain their private life and ethnic identity and avoid hardship flows from the very different character of the two competing interests. The thorny nature of the problem confronting the court in such cases was graphically described by Plender J in South Cambridgeshire District Council v Harry Price and others

[2008] EWHC 1234 (Admin)

“4. The problem that cases of this kind present, both to planning authorities and to judges, is as acute as it is familiar. It is expressed in a document quoted by Lord Bingham in South Buckingham District Council v Porter [2003] 2 AC 558 at 570: “the basic conflict underlying the “problem” of unauthorised camping is between gypsies/travellers who want to stay in an area for a period but have nowhere they can legally camp, and the settled community who, by and large, do not want gypsies/travellers camped in their midst. The local authority is stuck between the two parties, trying to balance the conflicting needs and often satisfying no-one”. 5. The judge is in a similar position. He must be conscious of the duty to uphold the lawful decisions made by the planning authorities. That is an important consideration to which every judge will attach weight. But the judge must also keep in mind the consequences of issuing an injunction to those who cannot comply with it other than by committing a trespass, or offence, upon other land. Those consequences are set out in Hambleton District Council v Bird [1995] 2 PLR 8: “in a case where no alternative sites were available, that would drive the gypsies either onto the roads, into homeless accommodation or, on non-compliance with the injunction, into prison”

. Moreover in some cases an injunction may have a disproportionately injurious effect, for instances, by interrupting the education of small children or driving gypsies to a road-side settlement in which their children are liable to be exposed to dangers, particularly from passing traffic; and may create a danger for other road users.” “the basic conflict underlying the “problem” of unauthorised camping is between gypsies/travellers who want to stay in an area for a period but have nowhere they can legally camp, and the settled community who, by and large, do not want gypsies/travellers camped in their midst. The local authority is stuck between the two parties, trying to balance the conflicting needs and often satisfying no-one”. “in a case where no alternative sites were available, that would drive the gypsies either onto the roads, into homeless accommodation or, on non-compliance with the injunction, into prison”. Moreover in some cases an injunction may have a disproportionately injurious effect, for instances, by interrupting the education of small children or driving gypsies to a road-side settlement in which their children are liable to be exposed to dangers, particularly from passing traffic; and may create a danger for other road users.” Analysis The Council

Analysis

[47]Confronted with what it appears to have assumed to be a well organised and deliberate attempt to present it with a fait accompli designed to pre-empt any attempt by the Council to stop the Defendants moving onto Plot 3, the Council appears to have taken the view that this factor was sufficient in itself to justify an immediate application for an injunction under section 187 B to restore the status quo ante. Such an application was in the Council’s view necessary to uphold the principle of complying with planning law and the rule of law itself. In a witness statement served in support of the application Mr Finnin, the senior planning enforcement officer employed by the Council, stated that the development had inflamed local opinion and exhibited an online newspaper article which he said gave a flavour of the sort of reaction generated by the development, although he denied that the Council was applying for an injunction because it was unpopular with the settled community.

[48]It is not difficult to feel some sympathy with the Council’s initial reaction. However, in my judgment, it appears to have been led by this reaction into error in its response which did not follow the approach carefully laid down by the House of Lords in the Porter case. First there is no evidence that before reaching the decision to apply for an injunction the Council investigated the circumstances leading up to and the reasons for the Defendants’ decision to bring their caravans onto Plot 3 and take the other steps which they took on the Easter weekend. Indeed the timing of the application suggests that it did not do so. Thus the application for an injunction was issued on 21 April 2009, a week after the Defendants had moved onto the site and carried out their earthworks. In Mr Finnin’s witness statement which is dated 24 April 2009 , the only evidence of any contact between the Council and the Defendants (other than a second visit to the site by him on 14 April for the purpose of serving temporary stop notices on the occupiers) was a visit to the site on 14 April by him and a Ms Brett, an environmental health officer, to attempt to gain information about the Defendants and their households and to take pictures of the site. No details are given as to the nature of the information which he sought to obtain or did obtain but there is a possible inference from the witness statement that his principal concern was to ascertain their names for the purpose of being able to name them as defendants in an application for an injunction. With one exception referred to below there is no evidence that Mr Finnin asked the Defendants any questions or made any other enquires to establish why they had moved on to the site without planning permission or what would be the consequences for them and their families in the event of an injunction being sought and granted.

[49]Second it does not appear from Mr Finnin’s witness statement that before deciding to apply for an injunction the Council fully considered the personal circumstances of the Defendants, named and unnamed, and their families and any hardship which an injunction might cause to any or all of them or addressed its mind to the question whether those factors were outweighed by the necessity or expedience of seeking injunctive relief. There is no reference in his witness statement to any of the circumstances or reasons leading up to the Defendants’ decision to move onto the site and with one exception no reference to any of the matters relied on by the Defendants in opposition to this application as evidence of the hardship that would be caused to them and their families if they were forced to leave Plot 3. That exception is a reference to being told on 14 April 2009 that one of the occupiers was expecting a baby imminently. Mr Finnin appears to have considered that this might be a reason for giving that family an appropriate period of time to leave the site rather than a personal circumstance which should be balanced against the public interest in enforcing planning control when the Council considered whether it was proportionate to apply for an injunction at all at that stage.

[50]Although Mr Finnin stated that the information gleaned from his visit on 14 April did not suggest that there was any justification for what in his view was a deliberate breach of planning control, he did not elaborate on what that information was. Similarly although there is a general statement in his witness statement that he “recognised the occupiers’ need for accommodation and their Convention right to respect for their home and family life”, there is no reference to any particular personal circumstances relating to the Defendants individually (apart from the one mentioned above) and no evidence that such circumstances, or even the Defendants’ need for accommodation and their Convention right to respect for their home and family life, were considered and weighed in the balance by whichever official(s) or Councillor(s) took the decision to apply for an injunction.

[51]If anything such limited material as there was before the Court on this issue suggests that it was not .Thus in the online newspaper article exhibited to and relied on by Mr Finnin, which was last updated early on the morning of 17 April 2009, a local Councillor was quoted as saying:

“We couldn’t get an injunction because of the bank holidays.”

A spokesman for the Council was quoted as saying:

“On Tuesday morning, as a matter of urgency an emergency meeting was held between councillors and officers to plan the way forward. Following this meeting, enforcement officers along with environmental health officers visited the site to determine what action can and will be taken.”

Councillor Keith Parker, chairman of the Council’s planning committee was quoted as saying:

“The council will robustly pursue this matter.”

[52]There is no indication in Mr Finnin’s witness statement that consideration was given by the Council to the question whether an application for an injunction under section 187 B might be premature, either because all other remedies for securing compliance with planning law had not been exhausted or because there were no circumstances of sufficient urgency to justify an injunction . It is true that he served temporary stop notices on the Defendants on 14 April and it may be that the Council assumed that because of what it took to be the Defendants’ attempt to present the Council with a fait accompli they would not comply with stop notices or enforcement notices and that they would not respond to a criminal prosecution. However there is no evidence that anyone in the Council went through this thought process or considered these matters. Nor is there any evidence that the Council was aware, before deciding to apply for an injunction, that some of the Defendants had been aware before they entered the site that in doing so they would be in breach of the 2001 enforcement notice so that it might be assumed that they would not respond to criminal prosecution.

[53]There are two matters which, in my view, are not easy to reconcile with any suggestion that the granting of an injunction can be justified by considerations of urgency. The first is that the Council tolerated criminal breaches of enforcement notices prohibiting the use of Plots 1,2 and 3 for residential purposes and the presence of mobile homes thereon for many years without ever making an application for an injunction under section 187B. This is of particular significance in relation to Plot 3. Further in the case of each of those Plots, the conduct of the occupiers prior to the arrival of the Defendants on Plot 3 was arguably more blameworthy and more indicative of a persistent refusal to comply with planning law and enforcement notices than that of the Defendants. Those occupiers had been in residence for a period of years and had ignored not only stop notices but enforcement notices and criminal prosecution.

[54]The Council submits that the scale of breach of planning control on the part of the Defendants is greater than that of Mr Udall, the Betts and Mrs Corrie. That is undoubtedly true. However the Council itself in support of its application for injunctive relief against the Defendants relies on the fact that the inspector who dismissed Mr Udall’s appeal against refusal of planning permission in April 2003 stated that the mobile home, small out buildings and hard surfaces installed by Mr Udall had given the land a domestic appearance and that the change in local character was visible from the road and the wider area and concluded that the development had resulted in a loss of openness and formed a harmful encroachment in the countryside. To like effect were the comments of the inspector who rejected Mr Udall’s appeals against the enforcement notices dated 5 February 2001 in respect of Plot 3 on which he had erected a shed, access track and formation of associated hard standing and placed touring caravans. That inspector described Plot 3 as a particularly open site and although the road side trees provide some screening during summer months stated that he could well understand the concerns of the Council as to the prominence of the site in winter where the trees would have shed their leaves. He viewed the harm to the Green Belt as serious and did not believe that the personal factors relating to Mr Udall outweighed the very cogent policy and environmental objections. It is of particular note that he considered that those objections could not properly be overcome by attaching a condition limiting the number of caravans on the site to two.

[55]The Council submits that the Defendants’ current use of the site is far more extensive and harmful to the openness of the Green Belt, the safeguarding of the countryside from encroachment and the character and appearance of the area than the previous use of the site by Mr Udall. Without the benefit of a site visit there are limitations on the ability of the court to reach meaningful conclusions on such a submission. Nonetheless I am prepared to accept, if only as a matter of common sense, that the scale of the Defendants’ development is likely to represent a more significant undermining of the benefits of the Green Belt than that of Mr Udall. They brought 14 caravans on to Plot 3. The decision of 15 June 2009 by the Council refusing the Defendants’ application for retrospective planning permission concludes that the development causes significant harm to the openness of the Green Belt. On the other hand, based both on the findings of the two inspectors already referred to and some photographic evidence, it also seems to me reasonably clear that the pre-existing development certainly on Plot 3 and arguably on Plots 1 and 2 represented a detriment to the environment such as would have entitled the Council to give serious consideration to applying for injunctions under section 187 B against Mr Udall, the Betts (and Mr and Mrs Aldwin, as to whom see below) and Mrs Corrie. The fact that it did not apply for injunctions against any of them over a period of several years, while not in any way being determinative of the merits of this application, does, in my judgment, go some way to undermining any suggestion that the environmental damage caused by the Defendants is of so serious a character as to make the need for its removal a matter of urgency. I also note that the decision of 15 June 2009 refusing planning permission records that it is considered by the Council that the development does not harm the amenity of nearby residents or, based on the advice of the Highways Officer, highway safety and thus complies with Local Plan Policies CP1 and T2 in those respects. I further note that in a letter before the court the current occupiers of Plot 1, a Mr and Mrs Aldwin, who appear to have succeeded Mr and Mrs Betts as occupiers of the mobile home on Plot 1, write that after the shock of the Defendants moving onto Plot 3 “they have settled in and are very quiet, clean and tidy and have not been a problem to us.”

[56]I observe in passing that the failure of the Council to apply for injunctive relief against any of Mr Udall, the Betts and Mrs Corrie points, in my judgment, strongly against the Defendants’ submission that the decision to apply for an injunction against the Defendants appears to amount to racial discrimination when other unlawful occupiers have not been subject to the same application. Reliance in this regard is placed on Mr and Mrs Aldwin, the current occupiers of Plot 1.. In a letter before the court Mr and Mrs Aldwin state that they are not travellers. Neither is Mrs Corrie a gipsy. However it appears to be the case that during the period following the failure of their appeal against the refusal of planning permission in 2001 and the decision of the inspector in relation to Plot 3 in April 2003 the Betts remained in breach of the enforcement notice applicable to Plot 1 and that the Council did not seek an injunction against them. The Betts were gipsies, Mrs Betts being Mr Udall’s daughter. Mr Udall was also a gipsy.

[57]In my view, the significance of the Council’s failure to apply for injunctive relief against Mr Udall, Mrs Corrie, Mr and Mrs Betts, and Mr and Mrs Aldwin is not that it supports any suggestion of racial discrimination. It does not. Rather it is that it detracts from any suggestion that prior to the arrival of the Defendants the removal of mobile homes or caravans from Blackmore and the restoration of Plots 1, 2 and 3 to agricultural use was or was regarded by the Council as a matter of urgency such as to make an application for injunctive relief necessary or expedient.

[58]The second matter is the fact that on 1 May 2009 at the hearing of the Council’s application for an interlocutory injunction, the Court did not grant an interlocutory injunction requiring the Defendants to leave the site until the hearing of the substantive application but rather was prepared to allow them to remain on the basis of undertakings by the six named Defendants and an order against the unnamed Defendants not to bring any more caravans onto Plot 3 beyond the existing 14 and not to carry out any further works until the substantive hearing of the application for an injunction. As a result there was no prospect of the Defendants being removed from Plot 3 prior to the substantive hearing of the Council’s application which did not take place for a further seven weeks. This, in my judgment, further detracts from any suggestion that the removal of the defendants is a matter of such urgency as to require the sanction of an injunction.

[59]By the time of the hearing on 1 May 2009 the Defendants had issued an application for retrospective planning permission. It was the evidence of Ms Mathews, the planning officer who dealt with it, in a witness statement dated 22 May 2009 that she considered it highly unlikely that any sort of permission would be granted to the Defendants by the Council or on appeal. In the event the Defendants’ application was refused by the Council’s planning authority itself on 15 June 2009 and, as previously mentioned, the appeal to the inspector is scheduled to be heard on 6 and 7 October 2009. Thus on the Council’s case there was a likelihood that a final determination that the Defendant’s conduct could not be sanctioned by planning permission will be made when the inspector announces his decision. Had the Council had evidence that the removal of the Defendants for the period between 1 May 2009 and judgment on the substantive application for an injunction was a matter of urgency one would have expected it to put it before the Court and had such evidence been compelling one might have expected the Court to grant an interlocutory injunction. There was no suggestion made to me that there were factors which made the removal of the Defendants during the period between the hearing of this application and the publication of the inspector’s decision more urgent than their removal during the period between 1 May 2009 and judgment on this application.

The Defendants

[60]The six named Defendants all served witness statements and gave oral testimony. So too did Mr Green. The six named Defendants gave their evidence in an open and straight forward manner. They readily accepted that Mr Green had advised them not to move onto Plot 3 without planning permission and that when they did so they knew that they were thereby in breach of planning law and remained in breach of planning law by their continuing residential occupation of the site. I found them honest and truthful witnesses and accept as truthful their accounts of the circumstances leading up to their decision to purchase and move onto Plot 3. Those circumstances are broadly as set out in paragraphs 2, 3, 4, 5, 6, 9 and 23 above.

[61]Notwithstanding the named Defendants’ admitted knowing breaches of planning law, the overall picture presented did not in my judgment support and indeed fell far short of supporting findings of the kind of conduct and attitude to the law and the planning process, namely “a history of unsuccessful enforcement and persistent non-compliance [or]…evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay” which Lord Bingham identified as examples of the type of case where the task of the court might be relatively straight forward. I would emphasise in particular the following parts of their evidence.

[62]First it is clear that for a period of many months the Defendants made genuine efforts to identify land which would be suitable for their collective and individual needs and would be likely to obtain planning permission. Their intention at the outset and their clear preference was to proceed in compliance with planning law.

[63]Second in pursuit of that objective they liaised with and took advice from local planning officers. Thus they had discussions with a planning officer of the Broxbourne Council in relation to a site in Broxbourne, a few miles west of Plot 3, and did not instruct solicitors to agree to the drawing up of a contract for the purchase of that site until they had advice from him that it would be a good site for them to stay on. There was correspondence between them and the Broxbourne Council in relation to what they should place on the site. When that fell through they proposed two or three further sites to the Broxbourne Council all of which they were advised by the Council were unsuitable for their purposes and would be unlikely to receive planning permission.

[64]They then found an old mushroom farm in Nazeing, Essex and some of them met a planning officer of the Epping Council who told them that they would not get planning permission on that land because it was within a flood risk area. They asked this official for his advice about where they could find land and he told them that if they found something east of the M11 where the only difficulty was that the land was in the Green Belt the Council would be likely to pass it as being suitable. Plot 3 was indeed east of the M11, albeit on the far side of the boundary with Brentwood, a fact which the Defendants discovered only shortly before they bought Plot 3.

[65]Third the Defendants took advice from Mr Green’s firm of planning agents first in relation to the land in Broxbourne, in respect of which they instructed him to make an application for planning permission (albeit the purchase fell through before the application was lodged), second in relation to the land in Nazeing and finally in relation to Plot 3.

[66]Fourth they genuinely believed before they moved on to Plot 3 that they would be likely to or at any rate have a good chance of obtaining planning permission, even if only temporary, and even if only following an appeal. This belief was based principally on the advice they received from Mr Green but also on the earlier more general advice which they were given by the planning officer from Epping. The genuineness of this belief derives support from Mr Green’s evidence from which the strength of his conviction that they were likely to get planning permission on appeal shone through. It also derives support from the fact that they were prepared to risk £80,000 on buying a Plot which, in the event of planning permission being ultimately refused, would be likely to make it very difficult for them to purchase an alternative site.

[67]Fifth while they accepted that Mr Green advised them not to move onto the site until and unless they obtained planning permission, they were aware that there were already mobile homes on Plots 1, 2 and 3 which had been on site in breach of planning law for some time. They believed with some justification that this state of affairs was one which had been tolerated by the Council or at least which the Council had taken no steps to bring to an end by seeking their removal, and they assumed, no doubt misguidedly and as it turned out incorrectly, that if they moved on to Plot 3 there was a good chance that the Council would not take steps to remove them.

[68]One of the Defendants stated that the owner of Plot 3 had a mobile home already on it and had told them that he had been there for about 9 years, he had made a previous planning application which had been turned down but the Council had never tried to get him off. In addition there were two other families occupying homes on Plots 1 and 2. He stated that they all thought that because there were mobile homes already on Plots 1, 2 and 3 it would be safe to buy Plot 3 and, I infer, that since the Council had not taken steps to remove the existing occupiers of Plots 1,2,and 3 and had tolerated their unlawful occupation there was a good chance that it would not take steps to remove the Defendants if they moved on before the determination of their proposed application for planning permission. Another Defendant stated that he could see from Mr Udall’s mobile home that nothing had been done to try and remove him from the land and that he thought that the situation was that provided he did nothing else he could stay. A third stated that he thought that it would be safe for the Defendants to move on to the land. A fourth stated that the previous owner had told him that an application for planning permission had been turned down in 2000 but that nothing had ever been done to remove him from the land. He also knew that there were two other mobile homes on Plots 1 and 2 and therefore thought that the Defendants would be able to place their caravans on Plot 3 and get planning permission.

[69]Although they knew that by moving onto the site without planning permission they were not only jumping the gun but acting unlawfully, this was not a case of people who had no reason to believe that they would get planning permission, or indeed every reason to believe that they would not, or of people whose conduct throughout displayed a contempt for, lack of interest in or refusal to spend the time and money involved in seeking to proceed in accordance with planning law.

[70]The Council submits that a particular factor to be weighed in the scales against the Defendants is that their conduct was to their knowledge not just unlawful by reason of not having the sanction of planning permission but also criminal by reason of being in breach of the 2001 enforcement notices. The evidence of the Defendants as to their state of mind on the enforcement notices was not uniform. Mr Smith gave no evidence as to what if anything he knew about the enforcement notices, but stated that the Defendants had instructed Mr Green to make a planning application and that in the meantime he thought it would be safe for them to move on to the land. Mr Moss stated that initially when the Defendants found Plot 3 and talked to Mr Udall they did not know that there were enforcement notices on the land which would stop them doing anything, it is fair to say that before completion of the purchase he did know about them but he thought that they only related to Mr Udall and would not affect anyone buying the land. In oral testimony he stated that he did not understand about enforcement notices. Mr Loveridge stated in his witness statement that it is fair to say he did become aware of the enforcement notices on the land but thought that they only affected Mr Udall and that if new owners bought it, they could still apply for planning permission and would not be affected by the notices. However in cross examination he accepted that he had been told about an enforcement notice by Mr Green and that it all depended on how the Council decided to react. It might decide not to enforce the enforcement notice and leave the Defendants on Plot 3, it might prosecute them and they might be fined £100 or it might make an application of the sort which has now been made. Mr Vanslow Ball said in oral testimony that the Defendants knew that there was an enforcement notice and had initially intended to approach the Council but later on decided that there was no time to do so. Mr Vinden in his witness statement stated that he knew about the enforcement notices before the purchase went through but was not certain what effect they had and believed that they only stopped the previous owner from doing anything on the land and would not affect the Defendants. However in cross examination he stated that he knew that there would be a breach of the enforcement notice if the Defendants moved on to Plot 3, although this has to be seen in the context of his evidence that he knew that no steps had been taken by the Council to remove the mobile homes unlawfully occupied by the existing owners of Plots 1,2 and 3. Mr Walter Ball accepted in oral testimony that “we” knew about the enforcement notice and that Mr Green had said that they would be in breach of it if they moved on to Plot 3 which might result in a fine, but the Defendants had been in a great urgent need of somewhere to go rather than being parked on the roadside.

[71]From Mr Green’s evidence it appears that the two Defendants he actually met on site at Plot 3 and gave advice to were Mr Walter Ball and Mr Vinden. He could not remember whether he also discussed matters with Mr Loveridge on the telephone later. Although he undoubtedly advised Mr Ball and Mr Vinden not to move on to the site in advance of planning permission and he mentioned the enforcement notices it is not clear from his evidence whether he mentioned them in the context of his advice that it would be unlawful to move in without planning permission. He did mention them in the context of his advice that the likely outcome of a planning appeal would be the grant of long temporary planning permission, when he said that the notices cut both ways in that the failure of the Council to remove the existing mobile homes despite the enforcement notices could be said to have altered the character of the site such as to diminish any environmental damage argument.

[72]Sixth, although they did not inform the Council in advance of their moving onto the site of their intention to do so, the Defendants were at least in part influenced by the fact that they suspected that the reason why their proposed purchase of the earlier site in Broxbourne had fallen through, after they had incurred legal and planning agent fees, was that a Broxbourne Council official had tipped off the seller to the fact that they were gipsies. There was no evidence before me that that had in fact occurred, but what is relevant for present purposes is not whether it had occurred but rather that their suspicion that it had occurred led them to fear that a cards on the table approach might lead to a similar outcome in respect of Plot 3. This particular factor is in my view of only marginal assistance to the Defendants as a factor mitigating their deliberate breach of planning law since by the time they moved onto Plot 3 they had already purchased the land so that there was no risk of the purchase falling through in the way that it had at Broxbourne.

[73]Seventh although the named Defendants knew that by moving onto the land without planning permission they were breaking planning law, there was an element of desperation in their decision and the alternatives were not free from a significant risk of either acting unlawfully in different ways or of exposing themselves and their families to danger or both. Thus most of them had previously occupied sites in an unlawful manner, whether by doubling up on other gipsies’ pitches or by being otherwise in breach of planning law by for example parking in lay-bys. Some had been squatting on a pitch at Tylers Cross which they left because of a series of violent incidents leading up to a shooting and the arrival on site of armed policemen.

[74]Eighth despite searching for several months, in at least one case for as long as 18 to 24months and in another for 12 to 18 months, the Defendants had identified no other suitable site where they could lawfully reside whether in the long term or while they awaited the outcome of the planning application for Plot 3 which they intended to lodge with the assistance of Mr Green’s firm.

[75]Ninth, this leads to the more general reasons why the Defendants purchased Plot 3 and wanted to move onto it. Put shortly, a shortage of suitable sites has made travelling much more difficult. It has become impossible to spend a life permanently on the road and necessary to have a base to which they can return. Added to this was the need for their children to have a permanent base from which they could either attend school or have home teaching and the desirability of a fixed residence to facilitate proper medical attention for various of the Defendants and members of their families. By way of example the wife of one Defendant suffers from an irregular heart murmur which makes moving from place to place difficult and is aggravated by the uncertainty involved in a peripatetic lifestyle. Another Defendant had a daughter who had attended 10-12 schools in the previous 18 months as a result of all the moving he had had to do. Each time she started going to a new school she had to begin at the beginning and was therefore behind. He had been advised that she needed a speech therapist.

[76]Tenth in relation to the critical decision to move onto the land without prior notification to the Council, it was put to one of the Defendants in cross examination that the Defendants’ reason for not contacting the Council in advance was because they knew that if they did the Council would take steps to stop them getting onto the site. His answer was disarmingly honest. He said that they were frightened that the Council would take steps to stop them just as they thought that the Council in Broxbourne had stopped them by contacting the seller of the land they were on the point of buying there, who, having been eager to sell suddenly went cold within days. Having decided to go about things in the proper way at Broxbourne and had that response from the Broxbourne Council, they were frightened that the Brentwood Council would stop them from moving onto the site if they told them of their intention. “Then we would be breaking the law on lay-bys. We would rather break the law on our own property with our children going to school and not running up and down in a car park.” I accept his evidence in answer to an earlier question that this decision had not been taken at the outset prior to the purchase of the land, at which point the defendants had intended to consult the Council before moving onto Plot 3. He stated that they had been aware of the existence of an enforcement notice and had not intended to move on in breach of it. The decision to move on without first informing the Council was taken after the land was purchased because of an impending operation for his father-in-law and the imminent birth of a baby to the wife of another of the Defendants, Mr Smith. Mr Smith himself stated that it was “certainly necessary” to move on to the land because of the birth of his baby which was due to take place shortly. The baby was due in two weeks and the only alternative to moving on to Plot 3 would have been to park by the side of the road which would have been dangerous and also unlawful. They had nowhere else to go. It is an irony that one of the reasons why the Defendants brought Plot 3 was because they wanted to own a place where they could live without breaking the law which is what most if not all of them had been doing whether by parking by the side of the road, in car parks or doubled up on other people’s pitches.

Hardship and the human factor

[77]The Defendants submit that the effect of an injunction removing them and their caravans from Plot 3 would cause significant hardship to them and a disproportionate interference with their Article 8 rights which outweigh any arguments in favour of the grant of an injunction. They rely on a number of matters.

[78]First none of them has any alternative available accommodation or any realistic prospect of obtaining such accommodation either in the short term or even in the foreseeable future. On the evidence before the court I accept that at least on the balance of probabilities this is correct. The Defendants were cross-examined on where they had been living before moving onto Plot 3 and what steps they had taken to seek alternative accommodation. In general terms they had been staying on pitches belonging to other gipsies on which their caravans were unlawfully doubled up and which were needed by their owners for members of their own families. The pitch at Tylers Cross, on which some of them had been staying, would be wholly unsuitable, given the real danger to the Defendants and their families from the violent behaviour of other occupants of the site.

[79]Although the Council is committed to authorising a further 15 pitches in Brentwood, the sites provisionally earmarked by the Council, which are subject to a consultation process, are already occupied by other gipsies. Mr Green of counsel who appeared on behalf of the Council submitted that under the East of England Regional Plan there will be new provision in other parts of East England to cater for unmet need, from which the Defendants could benefit. In a witness statement dated 22 May 2009 in support of the Council’s application Ms Mathews, the case officer responsible for assessing and reporting on the Defendants application for planning permission, asserted that “there is no evidence that the needs of the adults or children on site could not be met elsewhere.” However neither she nor the Council was able to identify anywhere where their needs could be met elsewhere either in Brentwood or elsewhere. In particular she did not identify any suitable available accommodation or sites which were not in the Green Belt.

[80]Second even if there was alternative accommodation in another part of Eastern England, the effect of an injunction would be to cause significant hardship to at least some of the Defendants’ children. In particular one of the Defendants has a five year old son who has a Statement of Special Educational Needs. The boy’s assessment states that without someone helping him he will struggle and not be able to cope with school life. He has a language disorder and difficulties in social interaction. Since January 2009, that is to say some 3 months before the Defendants moved onto Plot 3, the boy has been attending Uplands School in Epping which is the first regular schooling that he has had. He is there allocated a specialist teacher for speech and language. His Statement of Special Educational Needs specifies the need for an effective and a mutually agreed system of home-school liaison to be established and, which is of particular significance in this context, to be maintained. It is the view of the school that he is settled in that school, that moving school would not be good for him and that he should not be moved. If an injunction were granted on the basis that his parents could seek alternative accommodation in another part of Eastern England, there would, in my judgment, be significant harm to the boy in the short term and possibly also in the longer term. Based on the evidence of enquires made by his father before moving on the Plot 3 there would be no space for him on the pitches occupied by his sister or father. Given the history of unsuccessful searches for suitable accommodation over a period of 12 -18 months, and the time likely to be taken before other councils covered by the East of England Plan identify additional sites, it is in my judgment unlikely in any event that that Defendant would find a suitable alternative permanent site, if at all, for a considerable period of time. The reality is that if an injunction were granted this Defendant would be forced to choose between taking his son out of Uplands School or staying in the area and seeking to move from one roadside lay-by or car park to another where he and his family would be exposed to danger from passing traffic as well as causing danger to passing traffic and would of course also be acting unlawfully. Indeed this would be likely to happen even if he took his son out of school and moved away from Plot 3.

[81]For the Council Mr Green submitted that the Defendants’ only connections with Brentwood arose as a result of their unlawful occupation of Plot 3 and that any considerations of hardship flowing from such unlawful occupation should be disregarded or significantly discounted for that reason. He relied on the decision of the House of Lords in South Buckinghamshire District Council v Porter 2

[2004] 1WLR 1953

. In that case a council appealed against a decision by an inspector granting planning permission to a gipsy who had bought land in a Green Belt area, stationed her mobile home on it without planning permission and, having failed in her first application for planning permission to retain her mobile home on the site,nonetheless continued to occupy the site in breach not only of planning control but also of enforcement notices which were subsequently issued against her. Allowing her appeal against the refusal of a second application the inspector concluded that her status as a gipsy, the lack of an alternative site in the area and her chronic ill health constituted very special circumstances which were sufficient to override Green Belt policies.

[82]One ground on which the Council challenged the inspector’s decision was that he was wrong to ignore the unlawful nature of Mrs Porter’s continuing occupation of the site when considering whether there was sufficient hardship to constitute the very special circumstances required to override Green Belt policies. In a speech with which the other members of the House all agreed, Lord Brown, as he by then was, held that the unlawfulness of a development can in certain circumstances properly militate against the retrospective grant of planning permission. However it is not determinative. “…It seems to me that wherever the occupier seeks to rely upon the very fact of his continuing use of land it must be material to recognise the unlawfulness (if such it was) of that use as a consideration operating to weaken his claim. Take this very case and assume the Mrs Porter had been relying on her long period of residence to assert that her removal from the site now would cause her particular hardship beyond that resulting from removal after a substantially short period of occupation; hardship, for example, by breaking a number of local ties and friendships. Such a claim would seem to me to raise issues closely analogous to those arising on an Article 8 claim and to require substantially the same approach to the lawfulness or otherwise of the period of occupation as the European Court adopted in the Chapman case 33 EHRR 399.” “53. A further point should be made. A development without planning permission is one thing: it is unlawful merely in the sense of being in breach of planning control. Where however as here it has been persisted in for many years despite being enforced against, that is a rather different matter: it is then properly to be characterised as criminal.54. I would find it impossible to say in such circumstances that the unlawfulness of Mrs Porter’s prior occupation of the site was incapable of being of material consideration in the case. Whether in fact it was material, however, would depend on the way her hardship claim was advanced. If she was seeking actually to pray in aid her long period of occupation, then to my mind Judge Rich was clearly right to say that the unlawfulness of that occupation would diminish the weight of the case. As it seems to be, however, that really was not the nature or strength of Mrs Porter’s hardship claim. The inspector’s only mention of her occupation of the site ‘for a considerable period of time’ appears in paragraph 7 of his decision (see paragraph 15 above) and its consideration there was not as a possible point in Mrs Porter’s favour but rather as a possible point against her on the basis that it might have cost her status as a gipsy (although in the event no such contention was advanced).

55. When the inspector came in para 13 of his decision to summarise the very special circumstances of Mrs Porter’s case – her status as a gipsy, the lack of an alternative site in the area, and her chronic ill-health – none of these factors appears to have owed anything to the length of her residence on the site; her case would have been no different even had she occupied the site for an altogether shorter period.” (paragraphs 52-55).

[83]The approach of the European Court in the Chapman case referred to by Lord Brown was set out in paragraph 50 of his speech:

“Where a dwelling has been established without the planning permission which is needed under the national law, there is a conflict of interest between the right of the individual under article 8 of the Convention to respect for his or her home and the right of others in the community to environmental protection. 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 home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, 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”

[84]Lord Brown’s dicta were in the context of the approach to be adopted by an inspector when considering whether the personal circumstances and hardship of a gipsy constitute the very special circumstances required to out weigh the presumption against granting planning permission for residential occupation of caravans or mobile homes in the Green Belt. The issue with which I am concerned arises in the different context of the court deciding whether the personal circumstances of and potential hardship caused to gipsies in the event of an injunction being ordered is of sufficient significance to outweigh the environmental and public law arguments in favour of granting the injunction.

[85]There is no explicit statement in Lord Brown’s speech as to whether the approach he laid down as appropriate in the former context was of equal application in the latter context. The proposition laid down by the European Court in the passage cited by Lord Brown on its face appears no less and arguably possibly even more applicable to the latter context than the former. An injunction is after all a requirement that the individual leave his or her home. Moreover the risk of encouraging illegal action to the detriment of the protection of the environmental rights of other people in the community is one which it is easy to see might follow from anything other than a very cautious approach to granting protection to those who in conscious defiance of the prohibitions of the law establish a home on an environmentally protected site. If no account could be taken by the Court of the self-inflicted or artificially created nature of hardship relied on as a ground for resisting an injunction, the law, the courts, and ultimately society might become powerless to protect the integrity of the environment against the cynical manipulation of people who were prepared to occupy Green Belt land by stealth so as to present the authorities with a fait accompli. Indeed that is what the Council’s says has happened on this occasion.

[86]However it is, in my view, clear from Lord Brown’s speech that the unlawful nature of an occupation of land is not a complete bar to the Courts holding that on the facts of a particular case there is sufficient hardship to outweigh the arguments in favour of granting an injunction. Indeed such a proposition would be inconsistent, in my view, with the decision of the House in the first Porter case referred to earlier in this judgment. The exercise of weighing in the balance hardship on the one side and the importance of upholding planning and protecting the environment on the other only arises in a case of an actual or apprehended unlawful occupation or user of land. Were the fact of the illegality to operate as a complete bar to the court entertaining submissions based on hardship there would be no need for the balancing exercise which the House of Lords held the court is required to undertake .

[87]Even where the nature of the hardship flows from the unlawful user or occupation of the land, while that fact goes to diminish the weight to be attached to that aspect of hardship, I do not read Lord Brown’s speech as precluding the court altogether from attaching some weight to it and putting it in the balance. There is a further consideration. Where the effect of granting an injunction would be to cause hardship to a third party who has not been guilty of or responsible for the unlawful occupation or user of land, in my judgment there is nothing in Lord Brown’s speech to prevent the court from attaching to such hardship whatever weight it considers appropriate in the circumstances without having to give it diminished weight by reason of the illegality. In my view any hardship caused to a child of a gipsy against whom an injunction is sought and whose occupation of the land is unlawful, even deliberately unlawful, should be accorded no less weight than it otherwise would be on its merits by reason only of the illegality or even deliberate illegality of the conduct of its parent. I recognise that in practice this proposition might in some cases undermine the Chapman principle but it does not seem to me as a matter of logic or justice inconsistent either with it or with anything said by Lord Brown.

[88]As it happens, on the facts of this case, there is nothing either in Lord Brown’s speech or the decision of the European Court in Chapman which would require me to accord less weight to the hardship that would in my view be caused to the child with special educational needs if his parents were required by an injunction to leave Plot 3 than I would otherwise be inclined to attach to it by reason of the illegality of his parents’ unlawful occupation of the site. That is because the hardship would consist of being forced to move school and be deprived of all the benefits of continuity including the benefit of having the individual attention of the same teacher who has been allocated to him since January. That is a benefit which does not derive from or depend on the unlawful occupation of Plot 3 by his parents. The boy was attending the school from January 2009 some 3 months before they moved onto to Plot 3. However even were that not the case, and even if he had only started attending the school after his parents’ unlawful occupation of Plot 3, in my view I would have been entitled and indeed bound to accord such hardship as on the evidence would have been caused to him by being forced to move school no less weight than it otherwise deserved merely because of the unlawful nature of his parents’ conduct. He is in no way responsible for that conduct and for the court to seek to avoid that hardship would not be to reward the illegal conduct.

[89]As already mentioned, there is another Defendant who has a daughter who, as a result of all the moving he had to do, attended 10-12 schools in the 18 months before they moved onto Plot 3. Each time she started going to a new school she had to begin at the beginning and was therefore behind. He had been advised that she needed a speech therapist. In his witness statement he stated that she has now started going to Blackmore School in the village where she is very happy and started to make friends as well as being referred through the school for speech therapy. In oral testimony he said that if an injunction is granted he would not be prepared to move away from the area since that would mean taking his daughter out of the school. Accordingly he would pull his caravan up alongside the road unlawfully in order to keep his daughter at school. Based on past experience this would involve being moved on by the police and having to find somewhere else to park by the roadside every two days .

[90]Although he did not explicitly say that his daughter only moved to the school after he moved onto Plot 3, I am prepared to infer that that is the case. It might on that basis be said that the hardship to his daughter is one which flows from his unlawful occupation of the site in that if he had not moved onto the site she would not have began to make friends at the new school and had access to speech therapy. However in my judgment that is an artificial way of describing the hardship. The reality is that the hardship consists of having parents who previously led a peripatetic lifestyle which prevented her from settling down in any one school and being in a position where she needed but did not have the benefits of continuity flowing from remaining in one school. That is a hardship which pre-existed her parents’ unlawful occupation of Plot 3 and which would be avoided if they were not required by an injunction to leave Plot 3. Even if I am wrong in that analysis, in my judgment, for the reasons already given, since she is in no way responsible for the unlawful nature of her parent’s conduct, the hardship to her falls to be considered without reference to the illegality of that conduct.

[91]This raises a third matter relied on by the Defendants. The Defendant whose daughter has started at the local school said in oral testimony that in the event of an injunction being granted he would remain in the area so as to avoid having to take his daughter out of the school. He did not know where he could go since there is no alternative accommodation available in the area. As a result the likelihood was that he would park his caravan on the village green. To like effect was the testimony of the Defendant whose wife gave birth shortly after the Defendants moved onto Plot 3. He also said that he would stay around the village in a car park or on the playing field so as to enable his baby to be visited by the midwife. There was before the court a doctor’s letter stating that his wife was suffering stress and depression in part associated with anxiety over the possibility of eviction. A third Defendant with a three year old and a one year old had been looking for a permanent base since the birth of the elder child. The women in charge of the nursery school which the three year old has attended since the Defendants moved onto Plot 3 has said that he finds it difficult to mix with other children because he has attended five different nurseries in a short period of time. He said that if an injunction were granted he could not return to a nomadic life and would park his caravan in a local car park on the village green so as to enable his son to remain at the nursery.

[92]The Defendant whose son is at Uplands School with the speech therapist also said that in the event of an injunction he would have to find a lay-by or a car park to park his caravan since the Council had suggested nowhere else for them to go and he had nowhere else to go. The Defendant who believes that his wife’s heart condition is made worse by the uncertainty of having to move from place to place said that in the event of an injunction he would have to stay in car parks or lay-bys thereby reverting to breaking the law. Indeed the reality is that since none of the Defendants has anywhere to go, and in particular the site at Tylers Cross ,even if available, would not be suitable because of the risk of violence, it is likely that they would be forced to expose themselves and their children to the dangers inherent in resorting to unlawful and peripatetic road side parking.

[93]In short the effect of an injunction would in my view be to cause significant hardship not only to the Defendants but also to members of their families and in particular to their children.

The prospects of a successful planning appeal

[94]A further matter relied on by the Defendants is the submission that they have a realistic prospect of success in their appeal against the refusal by the Council of their retrospective application for planning permission. If that submission is well founded, they say, a number of consequences flow. First it suggests that the application for an injunction is premature. It is a factor to weigh in the scales in their favour, particularly in the context of hardship. If they ultimately succeed on their appeal the disruption and other disadvantages that would flow for them and in particular their families and children from having to move out of Plot 3 would have been avoidable and unnecessary and arguably exacerbated by the yet further disruption which would follow a move back onto Plot 3 after a successful appeal. Alternatively even if this factor is not sufficient in itself or taken together with the other matters relied on by them to persuade the court not to grant an injunction, it should be sufficient to justify either the application being adjourned until the outcome of the appeal is known or the suspension of any injunction until and unless the appeal fails.

[95]In considering this issue it is important to remind myself of the context in which it arises and the manner in which it must be addressed. It is convenient first to state what the court is not permitted to do. As appears from paragraph 100 of the speech of Lord Scott in the first Porter case the court could not properly refuse an injunction simply on the ground that it disagreed with the planning decisions that have already been taken. Where the planning situation is clear and apparently final the court has no alternative but to consider the injunction application without regard to the merits of the planning decisions already taken. As appears from paragraph 30 of Lord Bingham of Cornhill’s speech it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or that a local authority should have had different spending priorities.

[96]However as also appears from paragraph 100 of Lord Scott’s speech if the court thinks that there is a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed the court can adjourn the injunction application until the planning situation has become clarified. In South Buckinghamshire District Council v Smith

[2006] EWHC 281 (QB)

David Clarke J interpreted the judgment in Porter as entitling the court, in a case where it has found that there is a real prospect of a successful appeal, to grant an injunction but suspend its operation until the determination of an application for planning permission including the determination of any necessary appeal against refusal by the council.

[97]In my judgment it would be consistent not only with the speech of Lord Scott but also with that of Lord Bingham of Cornhill in a case where the court concludes that there is a real prospect of a successful appeal against the refusal of planning permission to take that conclusion into account in deciding whether it is proportionate to exercise the discretion to grant an injunction at that stage. In such a case if the court were to conclude that the grant of an injunction would be disproportionate at that stage, there would be nothing to stop the local planning authority from making a renewed application for an injunction under section 187 B if and when the appeal failed. By definition once an appeal failed, the circumstances would have changed. In my view there is no reason in principle why the court should not proceed in that way rather than by adjourning the existing application. Depending on the facts of the case, there might be practical advantages in adopting that course. Thus for example if the appeal failed there might be a saving in costs in avoiding the need for an adjourned hearing for the purpose of finally disposing of the original application. Moreover in my view the availability of that course to the court follows from the speech of Lord Bingham who said: “Nor need the court refuse to consider (PACE Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show.” (Paragraph 30). Lord Bingham did not there limit the context in which the court is entitled to consider the possibility of a successful appeal to the question whether the application for an injunction should be adjourned or an injunction be suspended.

[98]In South Cambridgeshire District Council v Price

[2008] EWHC 1234 (Admin)

the Defendants submitted that they had a real chance of success in an appeal against dismissal of their planning application and that accordingly they should not be forced to leave the site while the appeal was pending. They submitted that that objective could be met either by refusing to grant the injunction or by adjourning the application pending the outcome of the appeal. Plender J concluded that the Defendants had a real prospect of success on their appeal and his conclusion was in the following terms: “The upshot is that in my view it would be disproportionate to grant an injunction in this case while there remains a real prospect that an appeal against an enforcement notice or a fresh application by the respondents for the requisite planning permission might succeed. There is such a prospect in the case of the application for temporary planning permission which, I am now informed, is to be the subject of an enquiry that is likely to be fixed for 8 July 2008. It would be disproportionate to grant an injunction at this stage, the effect of which would be to require the respondents to leave the site in the absence of any alternative site provision. …” (paragraph 43). Although the form of order made by Plender J does not appear from the report of that case, and the language used is not wholly free from doubt, it appears that he declined to grant an injunction rather than that he adjourned the application.

[99]Paragraph3.1 of Planning Policy Guidance 2: Green Belts states that there is a general presumption against inappropriate development within the Green Belts. Paragraphs

3.2 states that inappropriate development is by definition harmful to the Green Belt. It provides that very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations. In view of the presumption against inappropriate development, the Secretary of State will attach substantial weight to the harm to the Green Belt when considering any planning application or appeal concerning such development.

[100]Circular 01/2006 states at paragraph 49 that new gipsy and traveller sites in the Green Belt are normally inappropriate development. The named Defendants thus accept that their use of Plot 3 as a site for residential use and location of caravans is inappropriate development. It is their case that there are very special circumstances which justify that inappropriate development because the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations. That case was rejected by the Council and is at the core of the appeal against the refusal by the Council of their planning application.

[101]On this issue there was a divergence of opinion between Mr Green for the Defendants and Mr Boyton a principal planning policy officer employed by the Council and Ms Mathews. In his witness statement Mr Green expressed the view based on a planning assessment prepared by his firm that there is a very good chance that planning consent will be obtained at least on appeal to the Secretary of State if not from the Council either for a permanent site or with temporary time limited permission in accordance with paragraph 45 of Circular 01/2006. In a second witness statement dated June 2009 he stated that his view had been further strengthened by what he had heard at an appeal on which he acted against refusal of planning permission by the Council in respect of a single pitch gipsy site at Clementines Farm, Navestock, Brentwood.

[102]In the light of the evidence he heard at that appeal he stated that he was very confident that a permanent consent is the likely outcome of the planning appeal in this case “as there is a clear, substantial immediate need, there are no suitable, acceptable, affordable alternative sites and the local planning authority’s action represents a clear and continuing failure of policy.” In her witness statement dated 22 May 2009 in response to Mr Green’s first witness statement Ms Mathews stated that she considered it highly unlikely that any sort of permission would be granted to the Defendants either by the Council or on appeal. Ms Mathews was integrally involved in making the recommendation accepted by more senior officials in the Council to refuse the application. In a witness statement dated 19 June 2009 commenting on Mr Green’s second witness statement Mr Boyton did not express a view on the prospects of appeal.

[103]There were a number of detailed points relating to the assessment of need for pitches in Brentwood, the Council’s approach to implementing national and regional planning policy and other matters on which Mr Green on the one hand and two Council witnesses on the other did not agree. Late in the afternoon of the first day of the hearing I was informed that Mr Green who was in court would only be available to give oral testimony that afternoon because of a commitment elsewhere. I was told that there existed obiter dicta in the Court f Appeal discouraging oral testimony on the issue of prospects of appeal. Those dicta were from Tuckey LJ (with which Peter Gibbson LJ agreed) in Wychavon District Council v Rafferty

[2006] EWCA Civ 628

at paragraph 66:

“But I should like to make an observation about what we have been told is the practice of some judges in these gipsy cases. This is that witnesses should be called and cross-examined on planning issues to enable the judge to form a better view of the prospects of success of outstanding planning applications or appeals. I do not think this is appropriate. Nothing which was said in the passages cited by the Chancellor from South Bucks District Council v Porter suggests that this is what the court should do. Indeed, Lord Hutton at paragraph 92 and Lord Scott at paragraph 100 suggest that the court should not do so. Such a course is I think unnecessary to enable the court to form a broad view of planning prospects, which it can and should do from the papers in the same way that the court so often has to do about other contested issues in interim injunction proceedings.”

[104]Mr Paget on behalf of the Defendants was anxious to enable Mr Green to elaborate his witness statement evidence and also to cross-examine Mr Boyton and Ms Mathews. Since Mr Green on behalf of the Council raised no objection to this course, and given that any prolonged argument on whether it should be followed was likely to pre-empt any conclusion since Mr Green would not be available after that afternoon, with some misgivings I agreed to that course.

[105]In oral testimony Mr Green said that he had always believed that there was a significant prospect of either temporary or permanent planning permission being granted on appeal. In the light of what he had heard at the Clementines Farm appeal he now thought that those chances were greatly increased because it exposed inadequacies in the Council’s approach to gipsy site provision both in relation to their policy and in practice. He was very confident that planning permission would be granted either permanently or for at least 3 years. Mr Boyton in his oral testimony while not accepting that there is a real prospect of success on appeal was far more muted in the expression of his view than Mr Green has been in the expression of his. In his first answer he said that he certainly could not preclude and would not pre-judge an inspector deciding to grant temporary planning permission but that in the current circumstances it was not necessarily certain that he would do so. He accepted that other appeals had been granted against refusals of planning permission by the Council and accepted that Mr Green could say that there was a real possibility of a successful appeal but was not sure that he would use the term a real prospect of success as distinct from a possibility. In re-examination he suggested that to say that it was not necessarily certain that permission would be granted on appeal was an understatement of his views.

[106]I bear in mind the warning from Lord Hutton in the first Porter case that a judge hearing a section 187 B injunction application “should be alert to ensure that he does not embark on the determination of an issue which would, in reality, involve him in the assessment of planning considerations which lie within the ambit of the functions of the local planning authority.” (paragraph 92). I do not read this warning as intended to be inconsistent with Lord Scott’s implicit view that it is open to the court to form a view as to whether there is a real prospect that an appeal might succeed. It does, however, in my judgment reinforce the importance of the court adopting what Tuckey LJ described as a broad brush approach when forming a view as to whether there is a real prospect that an appeal might succeed.

[107]After the conclusion of the hearing I was sent copies of the two decisions of the inspector who heard the Clemetines Farm appeal. The first decision allowed the appeal and granted planning permission for use of the land for the stationing of caravans for residential purposes as a single gipsy pitch on a permanent basis subject to approval of a site development scheme. The second decision ordered the Council to pay all the appellant’s costs of the appeal against the enforcement notice and part of his costs of the appeal against the refusal of planning permission. The reasons for both decisions were couched in robust terms.

[108]Following receipt of these decisions, I received written submissions from Mr Green and Mr Paget on the implications of the decisions. In broad terms Mr Green submitted that I should treat them with caution in view of differences in the circumstances between the two cases. He also stated that the Council was considering grounds for challenging the inspector’s decision for the purposes of proceedings under 288 and 289 of the Town and Country Planning Act 1990.

[109]Even before receiving the decisions in the Clemetines Farm appeal, I had reached the clear but provisional view that the Defendants have a real prospect of succeeding in their appeal in this case. I was reinforced in that view by some of the content of those decisions. Mindful of Tuckey LJ’s warning, it does not seem to me either necessary or appropriate to address in this judgment all the facts and arguments put forward by the witnesses in evidence and the submissions advanced by Counsel. It is in my view sufficient to record that, although I was by no means satisfied that all Mr Green’s arguments would succeed or even that there is a realistic prospect that they might all succeed, my overall impression is that there is enough of substance in some of the arguments put forward to justify the conclusion that there is a real prospect that the appeal may succeed. I would draw attention in particular to the following highlight points.

[110]The Defendants’ case on very special circumstances is based in large part on the absence of any current alternative available sites for them to move to and the submission that there is little likelihood that there will be enough sites to meet their need in the foreseeable future. Two examples were cited by Mr Green(the witness) of successful appeals for permanent planning permission based on the lack of any alternative available acceptable and affordable sites for gipsies in the relevant district. He asserted that there was a clear local need in Brentwood greater than 15 additional pitches and that by attempting to allocate fewer pitches than that clear local need the Council was ignoring the only currently adopted development plan policy on gipsy sites, H3 from the Regional Special Strategy, which requires local planning authorities to make provision to meet the identified needs of gipsies and travellers living in or resorting to their area (emphasis added). To this the Council responded, in my view with some force, that the requirement on the Council to provide a further 15 additional pitches by 2011 was imposed in the regional policy on gipsy and traveller accommodation and that the Council’s obligation was limited to identifying 15 pitches to satisfy that requirement.

[111]Mr Green placed reliance on paragraph 45 and 46 of circular 1/2006. Paragraph 45 provides that a temporary planning permission may be justified where it is expected that the planning circumstances will change in a particular way at the end of the period of the temporary permission. Where there is unmet need but no available alternative gipsy and traveller site provision in an area but there is a reasonable expectation that new sites are likely to become available at the end of that period in the area which will meet that need, local planning authorities should give consideration to granting a temporary permission. Paragraph 46 provides that such circumstances may arise in a case where a local planning authority is preparing its site allocations DPD. In such circumstances local planning authorities are expected to give substantial weight to the unmet need in considering whether a temporary planning permission is justified. To this the Council responded, again in my view with some force, that on the basis of the Council’s preliminary allocation of the 15 additional pitches, it is unlikely that new sites will become available in Brentwood to which the Defendants could realistically go after the Council produces its final allocations DPD within a year or so.

[112]However, in my view, it does not follow from this that there is no realistic prospect of a successful appeal.

[113]In the reasons for the substantive Clementines Farm decision the Inspector made the following findings.• All existing authorised, and proposed to be allocated, gypsy and traveller sites in Brentwood are in the Green Belt.

• The Council’s approach of identifying 5 sites for 15 permanently authorised pitches through their emerging DPD would meet the minimum requirements of the emerging RSS but would not accommodate the needs of the occupiers of 12 temporarily authorised or unauthorised pitches in the Borough.

• The failure of the Council to include provision for this element of local need within the emerging DPD, in the context of the substantial shortages and pressing need for additional provision of residential pitches across the Region will mean that those individuals will either have to await the formulation of gypsy and traveller site DPDs in other local planning authorities, with excess capacity or more generous provision and/or, and in the mean time seek to acquire or extend a planning permission to allow them to remain on their current sites. If they are unsuccessful in this way they are likely to be subject to an enforcement notice requiring them to vacate their site with no suitable affordable alternative being available, the situation facing Mr Sykes here.

• In terms of the likely timing of provision of new sites to meet the needs of Mr Sykes, or other gypsies and travellers living in Brentwood on a ‘non-allocated site’, at the present time and in the light of the announced approach to be taken by the Council in progressing their Gypsy and Traveller DPD, there is no reasonable expectation of a change in circumstances within a definite and foreseeable period.

[114]The Inspector gave those factors as they impacted on the appeal site substantial weight in favour of the grant of planning permission for the development in that case. She then addressed the accommodation needs and alternative accommodation options of the appellant, who had been brought up as a Romany gypsy family and lived, travelled and later worked with them. He had been looking for a pitch for himself for many years without success. He had very limited funds and had been outbid on one or two sites. His main priority was to find a site within 30 minutes drive of Harlow which would be suitable for himself and his sons when they stayed with him overnight, which he tried to do a couple of nights a week, when he was not away travelling. His aunt had gifted him the land to live on. If he was denied planning permission he did not know what he would do. He would probably have to return to an itinerant existence, but his girlfriend would probably not let him have his boys to stay in those circumstances.

[115]The inspector then made the following further findings. “57.Given the widespread and significant shortage of authorised gypsy and traveller sites across the Eastern Region, as discussed above, even if Mr Sykes had unlimited funds and a willingness to move some considerable distance this would not assist him: if there are no available alternative sites (and no party could point to any) then there is little point in making a fruitless search for them. Because of his personal circumstances there is a negligible chance of him being offered a pitch on a Council-owned site, even if one were to become available. He has a reasonable desire to live on a gypsy and traveller caravan site within relatively easy access of his children. Such a site is unlikely to be found in an urban area. While not all of the rural area within 30 minutes drive time of Harlow is in the Green Belt, much of it is, especially the nearer parts, and realistically, almost any alternative, suitable and affordable gypsy and traveller site would be.58. The enforcement notice against the use of the appeal site as a residential caravan site has come into effect and therefore the refusal of planning permission would make its continued occupation unlawful. The Council’s announced intentions, in terms of selected sites, for the Gypsy and Traveller DPD gives no realistic likelihood, for the foreseeable future, of providing Mr Sykes with an alternative site by that means. There is no evidence to suggest that any other local planning authority in the eastern region is as advanced in the preparation of its Gypsy and Traveller DPD as Brentwood and thus provision of an alternative site through the development plan process at a local level anywhere else in the Region is likely to be several years off. Furthermore, when such sites are provided there is likely to be severe competition for any that become available on the open market.

59. As a consequence the effect of a refusal of planning permission in this case would be to make Mr Sykes homeless, with no realistic prospect of an alternative authorised site becoming available to him for the foreseeable future. This would be directly contrary to the Government’s key objective for planning for housing: to ensure that everyone has the opportunity of living in a decent home, (circular 01/06 paragraph 1) and intention 12(i) of the Circular: to help to avoid gypsies and travellers becoming homeless through eviction from unauthorised sites without an alternative to go to.

60. While this section has considered the accommodation needs of the appellant, and his alternative accommodation options were the appeal to be dismissed, many of the findings apply equally to any gypsy and traveller currently living on an unauthorised site in Brentwood, or on an authorised site subject to a temporary planning permission due to expire shortly which is not one of the ‘preferred 5’chosen for progression in the DPD. In the light also of the provisions of adopted RSS Policy H3, and the consequences for all of the individuals involved of the approach being taken by Council I give these factors significant weight in favour of this appeal, and not only in terms of Mr Sykes personal situation.” (emphasis added)

[116]Finally the inspector addressed the question whether the harm by reason of inappropriateness and any other harm was clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development in this case. She made the following findings. “65. PPG2 requires me to give substantial weight to the harm by reason of inappropriateness when considering any case of inappropriate development in the Green Belt. In this case it is also necessary to add some limited weight to the harm to openness arising from both aspects of the development, and some additional weight to the harm arising to the local area in terms of adding to what is a relatively high concentration of gypsy and traveller sites and the pressure that is putting on the local community and infrastructure. I find no separate material ‘other harm’ to the character and appearance of the area.66. In terms of the relevant other considerations, the development complies with Local Plan Policy CP1, adopted RSS Policy H3, and emerging Policy H4 and the provisions of Circular 01/06, as set out above. I give the broad compliance with development plan and national policy substantial weight. I also give the regional and local shortage of gypsy and traveller sites, the acknowledged urgent need for additional sites and the failure of the Council to include provision for a significant element of local need within the emerging DPD substantial weight. I also give additional significant weight to the absence of any available, suitable and affordable alternative gypsy and traveller site and the consequences of this for Mr Sykes, or any other gypsy and traveller living on a site in Brentwood which does not already have a permanent planning permission or has been selected as one of the five ‘chosen’ sites for the DPD. Realistically any alternative gypsy and traveller site in the part of Essex will also be in the Green Belt. Taking all these other considerations together, and without going on to consider the detailed personal circumstancesof Mr Sykes, I find that they clearly outweigh the harm by reason of inappropriateness, and any other harm as set out above. I have no hesitation in finding that the very special circumstances necessary to justify inappropriate development in the Green Belt exist in this case.

67. In undertaking my duties under Article 8 of the Human Rights Act, I find that the significant interference to Mr Sykes’ rights which would occur were the appeals to be dismissed, or granted on a temporary basis only, would be disproportionate to any, and in this case very limited, public benefit arising from such a decision.” (emphasis added)

[117]While I accept that there are some factual differences between the two cases, both in relation to the nature of the site and the specific personal circumstances of the appellants, it is striking that the Inspector stated that her emphatic conclusions in respect of the harm by reason of inappropriateness being outweighed by other considerations and her finding of very special circumstances were reached without reference to the detailed personal circumstances of the appellant in her case and that she emphasised that many of her findings on accommodation needs apply equally to “any gipsy and traveller currently living on an unauthorised site in Brentwood …..which is not one of the preferred 5 chosen for progression in the DPD.”

[118]In her reasons for the decision on costs the inspector stated that the Council would have been well aware that at least five appeals concerning gipsy and traveller sites in the Green Belt in Brentwood in the last three years have been allowed, with planning permission being granted on a temporary basis (in light of the advice in paragraphs 45 and 46 of Circular 01/2006) because, in large part ,of the level of need for and shortage of alternative sites, the consequences for the individuals of dismissing the appeals in these circumstances and the expectation that the Council’s emerging DPD would make provision for additional sites to meet local needs on a planned basis within an identifiable time frame.

[119]In my judgment the decisions and some of the reasons for them in the Clementines Farm appeal support the conclusion that there is a real prospect that the Defendants’ appeal may succeed. That is a conclusion which I would have reached even without sight of those decisions. I found Mr Green to be a very experienced, well informed and balanced witness and his views on the relative weight likely to be attached by an inspector to the personal circumstances of the defendants, and the lack of alternative accommodation on the one hand and the harm to the environment and the inappropriateness of residential development in the Green Belt on the other broadly persuasive.

Overall conclusion

[120]I have reached the clear conclusion that, in the circumstances as they were presented to the Court, it would not be proportionate to grant an injunction requiring the Defendants to cease their residential use of Plot 3 and return it to agricultural use. In reaching that conclusion I have sought to take into account all the facts and matters set out in the speeches in the first Porter case to which I have referred. Weighing them all in the balance I do not consider that an injunction is justified as matters stand.

[121]I make clear that I have not disregarded the importance in principle of the courts upholding and being seen to uphold the rule of law and in particular planning law. Nor have I disregarded the importance of deterring cynical manipulation or abuse of the system. It is easy to see how the conduct of the Defendants on the Easter weekend may have appeared to the Council as a deliberate attempt to present it with a fait accompli. On one view that is not a wholly unfair characterisation of what occurred.

[122]However it is far from being the whole story. The Defendants are not in my judgment cynical or ruthless people who have set out to further their own ends in complete disregard for or lack of interest in the law. They set out with the best of intentions to comply with planning law and spent many months seeking a suitable site which was likely to get planning permission. They consulted and took advice from local planning officers and spent money on solicitors and planning consultants in an endeavour to find and acquire such a site. They were desperate to find a site where they and their families could settle down both without danger and without breaking the law.

[123]In the event they decided to move onto the site knowing that that it was unlawful to do so without planning permission. Some of them knew that by doing so they were also in breach of an enforcement notice. Most of them knew of the existence of the enforcement notice, but not all of them understood that it applied to them and all of them believed, in my view on reasonable grounds, that they had at least good prospects of obtaining planning permission at least on appeal. They were also heavily influenced by the fact that, to their knowledge, the Council had tolerated the presence of residential mobile homes not only on two neighbouring plots but on the very plot they had bought for several years without taking proceedings to evict the occupiers even though there were enforcement notices outstanding and there had been prosecutions. Some of them had been warned by Mr Green not to move on to the site without planning permission and that if they did the Council might take steps to seek to evict them. However they believed that there was a reasonable prospect that the council might tolerate their presence at least until the outcome of a planning application and/or appeal.

[124]In the event it appears that the decision to move on to the site without planning permission and without telling the Council was taken because the wife of one of the Defendants was expecting a baby in two weeks and the father in law of another was about to have an operation. None of them had any other accommodation or anywhere else to go other than the roadside. None was prepared, even if they had been able to, to return to the site at Tylers Cross because of the risk of violence and danger to them and their families. Although there was undoubtedly knowingly unlawful conduct, it was in my judgment, borne out of desperation and frustration rather than cynicism.

[125]I also take into account the fact that the background does not in my view suggest any or any significant urgency in the removal of the Defendants. That is the case even without regard to the fact that the Defendants have an outstanding appeal against the refusal of planning permission which in my judgment has a real prospect of success. I accept, and indeed cannot, in the light of the decision in the first Porter case, go behind, the conclusion of the Council in its refusal of planning permission that the development causes significant harm to the openness of the Green Belt. I also accept that the Defendants’ development is on a larger scale than the existing developments on Plots 1, 2 and 3. However the inspector who dismissed Mr Udall’s appeal against refusal of planning permission in April 2003 stated that the mobile home, small out buildings and hard surfaces installed by Mr Udall had given the land a domestic appearance and that the change in local character was visible from the road and the wider area and concluded that the development had resulted in a loss of openness and formed a harmful encroachment in the countryside and the inspector on the 2001 appeal described the harm to the Green Belt on Plot 3 as serious. It is impossible to ignore the fact that the Council has tolerated those developments for several years without seeking their removal by applying for an injunction. I have already said that I see no substance at all in the suggestion, which was not advanced with any rigour, that the decision to apply for an injunction constituted unlawful racial discrimination. I also take into account that it is considered by the Council that the development does not harm the amenity of nearby residents or, based on the advice of the Highways Officer, highway safety and thus complies with Local Plan Policies CP1 and T2 in those respects. I further note that in a letter before the court the current occupiers of Plot 1, a Mr and Mrs Aldwin, who appear to have succeeded Mr and Mrs Betts as occupiers of the mobile home on Plot 1, write that after the shock of the Defendants moving onto Plot 3 “they have settled in and are very quiet, clean and tidy and have not been a problem to us.”

[126]It is necessary to seek to weigh in the balance the detriment to the environment and the importance of upholding planning law on the one hand and the hardship likely to be caused to the Defendants and their families on the other. It is relevant to observe in this context that in my view there is little if any evidence to suggest that this balancing exercise was carried out by the Council before it decided to apply for an injunction. That omission itself is to be added to the Defendants’ side of the scales.

[127]In my judgment on the basis of the evidence before the court which I have summarised above that balance does not currently come down in favour of the grant of an injunction.

[128]This is closely linked to the fact that having searched my conscience I cannot say that I would on the basis of the material before me be prepared to contemplate sending the Defendants to prison for contempt of court if I were to grant an injunction and they were subsequently to break it. In reaching that conclusion I take into account their conduct, their motives , the hardship which in my view they and more particularly their families would suffer if they were now to be removed from Plot 3 including but not exclusively by reference to the unavailability of suitable alternative accommodation if an injunction were now to be granted

[129]In reaching my overall conclusion that it would not now be proportionate to grant an injunction I am fortified by my view that the Defendants’ appeal has a real prospect of success. It would in my view be to cause avoidable and unnecessary hardship as well as disruption to order an injunction before the outcome of the appeal is known. If they are successful in the appeal and later allowed to return to Plot 3 their children will have had the continuity of their education unnecessarily interrupted and they will all have been avoidably exposed to the hazards of life parked on roadside lay-bys. However my conclusion that on the present evidence the hardship factor outweighs the countervailing factors does not depend on my view that there is a real prospect of a successful appeal.

[130]In the light of these conclusions I have considered whether the appropriate order to make is to adjourn the application for an injunction until the outcome of the appeal is known or simply to decline make an order for an injunction. On balance in my view the latter is the right and proportionate course. If the Defendants win their appeal there would probably be no useful purpose served in incurring the expense of an adjourned hearing of the application since the outcome would be inevitable. If they lose the appeal the Council could, if so advised, make a renewed application. It by no means follows that it would decide to do so. It would no doubt wish to consider the conclusions reached in this judgment and any change of relevant circumstances. It may be that circumstances will change in the future, either in relation to issues of hardship or in relation to the availability of suitable alternative accommodation, or in relation to environmental damage or in relation to the planning regime or in some other respect in such a way as to lead the Council to the view that the balance between hardship on the one hand and environmental damage and upholding planning law on the other justifies a further application. In that event the Council would not be prevented by the terms of this judgment or my order from making a renewed application. I do not encourage it to do so. That would be a matter for the Council.