Coates v Dartford Borough Council [2013] EWHC 1160 (QB)

[2013] EWHC 1160 (QB)Case No QB/2012/0482IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONON APPEAL FROM THE MEDWAY COUNTY COURTCOUNTY COURT CLAIM No: 1DA 01622Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/05/2013
Before
THE HON MR JUSTICE RAMSEY
Between
SARAH COATESAppellantDARTFORD BOROUGH COUNCILRespondentTimothy Jones (instructed by Community Law Partnership Solicitors) for AppellantCaroline Bolton (instructed by Dartford Borough Council) for Respondent
Judgment

Introduction

[1]On 11 July 2012 Her Honour Judge Cameron, sitting in Medway County Court, dismissed an application dated 22 May 2012 made by the Appellant, Sarah Coates, to vary an injunction (“the Injunction”) made by Her Honour Judge Hammerton sitting in Dartford County Court on 7 July 2011 and subsequently varied on 10 August 2011 and 28 September 2011. The final version was contained in an Order dated 25 October 2011.[2]The Injunction which had been obtained by the Respondent (“the Council”) prohibited residential occupation of land known as The Stables, Station Road, Sutton at Hone, Dartford (“the Land”) by a number of named individuals and “Persons Unknown”.[3]The Appellant seeks permission to appeal out of time, permission to appeal and, if permission is granted, she seeks to appeal the Order made on 11 July 2012.[4]The grounds of the appeal may be conveniently summarised in the following terms:(1) That the Judge made essentially factual errors set out in paragraph 17 of the Appellant’s Skeleton Argument and Grounds of Appeal;(2) That the Judge failed properly to address the Appellant’s convention rights under Article 8 of the European Convention on Human Rights, alternatively the Appellant’s rights under a “duty of common humanity”;(3) That the Judge failed properly to consider the extent to which the Appellant’s predicament arose from chronic non-compliance with Government Guidance by the Council. Background[5]The Land is within the green belt and had been previously owned by Mrs Caroline Smith. In June 2011 Mrs Smith contacted Mr. Jonathan Phillips, a Director of a company of Town Planning and Development Consultants who had been involved in advising others in the local area on similar planning applications. She invited him to advise her on the prospects of obtaining planning permission for residential use of a static caravan on the Land. No application was made for planning permission at that stage.[6]On 7 July 2011 the Council obtained the Injunction against Mr Patrick Gaffney, the former owner of the Land and Lancebox Limited, the plant hire company employed by Mrs Smith to carry out work on the Land, as well as “Persons Unknown”. On 13 July 2011, the return date for the hearing of the Injunction, Mrs Smith was joined as a Defendant in these proceedings.[7]At that stage Mr Phillips became involved again and provided a witness statement dated 15 July 2011 for the purpose of the injunction proceedings. He then prepared a planning application for Mrs Smith which was submitted to the Council on 26 July 2011. In his evidence he said that he then went on holiday and was unable to make contact with Mrs Smith when he returned from that holiday. He said that he had had no contact with Mrs. Smith or Mrs. Smith’s Solicitors since that date and was wholly unaware how the injunction proceedings progressed or were concluded. He said he was not aware at the time, nor subsequently, that the Injunction sought by the Council would have the effect of preventing occupation of land by any party.[8]On 20 October 2011 the application for planning permission submitted by Mrs Smith in July 2011 was refused.[9]Some six months later, on 23 April 2012, Mr Phillips was contacted by Mr Alfie Harber, the uncle of the Appellant. Mr Harber had used Mr Phillips in the past when he had applied successfully for planning permission for residential use of a static caravan at a site, the Tennis Courts, near the Land. Mr Harber’s application had initially been refused by the Council but was then allowed on appeal. Mr Harber requested Mr Phillips to make an application for planning permission for the Appellant in relation to the Land. In fact, Mr Phillips had previously met the Appellant and her husband (from whom she was separated) on 22 September 2011 when they were discussing obtaining planning permission to place a static caravan on land near Staplehurst in Kent.[10]Subsequently on 11 May 2012 the Appellant purchased the Land and moved onto the Land with a static residential caravan on 12 May 2012.[11]On 11 May 2012 Mr Phillips made an application for planning permission on the Council’s planning portal and forwarded a fee for that application to the Council on 14 May 2012. He said in his witness statement that he had had no contact with the Appellant at this time or at any time since meeting her near Staplehurst on 22 September 2011. He said he used the Appellant’s details which he had taken at that time in September 2011 and had confirmed these with Mr Harber on 30 April 2012.[12]On 14 May 2012 and on subsequent days, Council Officers visited the Land and made the Appellant aware of the existence of the Injunction made by the order dated 25 October 2011.[13]On 22 May 2012 the Appellant issued an application to vary the Injunction. The application sought to vary the injunction on terms that it should be “suspended pending the outcome of the Applicant’s Planning Application and any appeal against refusal of that Application.” That application was supported by the first witness statement of the Appellant.[14]The Council responded to that Application by serving two witness statements. The first witness statement was from David Thomas, an Enforcement Officer with the Council and the second was from Adrian Legg, an Assistant Development Control Officer with the Council. Both witness statements were dated 27 June 2012.[15]Mr Phillips then produced his witness statement, also dated 27 June 2012, which was served on behalf of the Appellant. Finally, the Appellant served a second witness statement dated 10 July 2012 with exhibits which included two witness statements from Mr Daniel Coates, the husband of the Appellant. Those witness statements were dated 2 and 4 July 2012.[16]The hearing took place on 11 July 2012 and it follows that, given the late service of the Appellant’s second witness statement, the Council did not have an opportunity to respond to that witness statement but, understandably, wished the hearing to go ahead. After hearing submissions the Judge gave the judgment which the Appellant now seeks to appeal.[17]After the Judge’s refusal to vary the terms of the Injunction, matters developed as follows.[18]On 20 July 2012 the Appellant’s application for planning permission was refused. She has appealed against that refusal and that appeal is due to be heard on 21 and 22 May 2013. The Council applied for the committal of the Appellant and on 25 July 2012 she served a third witness statement. The matter was listed before His Honour Judge Simpkiss at Canterbury County Court on 12 September 2012. He found that the Appellant had been in contempt of court by remaining in residential occupation of the Land and sentenced her to 28 days in prison which was suspended provided the Appellant ceased to use the Land for residential occupation or in breach of the Injunction by 4:00pm on 12 October 2012.[19]The Appellant appealed to the Court of Appeal which dismissed the appeal on 26 November 2012 and varied the order of His Honour Judge Simpkiss by suspending the sentence provided that the Appellant ceased to use the Land for residential occupation or in breach of the Injunction by 4:00pm on 7 December 2012.[20]The Appellant did cease to use the Land for residential occupation by that date and I understand that she and her children are now living in “bricks and mortar” accommodation with her sister in what, I am told, are cramped conditions. The application to appeal out of time[21]The Judge’s decision not to vary the terms of the Injunctions was made on 11 July 2012. The Appellant’s Notice in Form N161 was filed on 11 September 2012. The Application for an extension of time is based on the following chronology.[22]On 12 July 2012 an application was made to the Legal Services Commission to extend the public funding certificate. In an email response the Legal Services Commission confirmed that the application was refused and that an “embargo” was placed on the Appellant’s certificate.[23]Mr Tim Jones, who appeared on behalf of the Appellant, said that this arose because it was noted from the judgment that the Appellant had received considerable sums on the sale of a property in May 2012. An appeal was lodged by the Appellant with the Legal Services Commission on 18 July 2012 and further clarification was provided to them on 24 July 2012. On 25 July 2012 the Legal Services Commission discharged the Appellant’s public funding certificate.[24]A further appeal was lodged by the Appellant on 31 July 2012 and on 30 August 2012 the Legal Services Commission confirmed that the discharge certificate had been reversed and that the Appellant had funding for the committal hearing on 12 September 2012 but the appeal in relation to funding being extended for an application for permission to appeal was still outstanding.[25]Further information was requested by the Legal Services Commission which was provided on 31 August 2012 and later that day confirmation was received from the Legal Services Commission that the appeal had been allowed and funding had been approved for an application for permission to appeal. The Appeal was then filed on 11 September 2012.[26]Whilst, on the face of it, that provides an explanation for the time taken to file Form N161, as Mr Jones accepted the question of whether or not to extend time is intrinsically bound up with the application for permission to appeal. If the application for permission to appeal has merit, then the Court will be more likely to grant an extension of time but if the underlying application does not have merit then the extension of time would not be appropriate: see Sayers v Clarke Walker [2002] 1 WLR 3095 at [34]. The application for permission to appeal[27]In order to succeed the Appellant needs to show that there is a real prospect of success in relation to the grounds of appeal. I have sought to identify above what essentially are the grounds of appeal put forward on behalf of the Appellant. Those grounds are discursive and are to a large extent based on what are said to be “misunderstandings” by the Judge. For instance it is said that the Judge “evinced a fundamental misunderstanding of the realities of life, both for Gypsy women like Mrs Coates and for those who advised them”. It was said that the Judge “misunderstood the claimant’s chronic and serious failure in respect of Gypsy caravan site provision”.[28]The main criticisms are in paragraph 17 of the Grounds of Appeal and are based on eight matters which, it is said, demonstrate that the Judge misunderstood “the realities of life for a Gypsy woman like Mrs Coates”. As a result the Grounds of Appeal do not articulate a clear case that the Judge was wrong in fact or law, although it is “errors” of the Judge which are relied upon. This is not a case where there is any alleged procedural or other irregularity in the proceedings in the lower court. I shall therefore deal with the Grounds summarised above which I consider reflect matters raised within the Appellant’s Grounds of Appeal and Skeleton Argument. The law[29]It is necessary to consider the law to be applied when granting or varying an Injunction under Section 187B of the Town and Country Planning Act 1990. Under that section the Court may grant a local planning authority such an injunction as the Court thinks appropriate for the purpose of restraining any actual or apprehended breach of planning control. The leading decision on Section 187B is the decision of the House of Lords in South Bucks District Counsel v Porter [2003] 2 AC 558. In that case the House of Lords considered three cases where local planning authorities had obtained injunctions against defendants who were gypsies, preventing them from living in mobile homes or caravans on land acquired by them but for which planning permission had been refused.[30]The Court of Appeal allowed the appeals against the injunction and the House of Lords dismissed the appeals by the local planning authorities. All the members of the House of Lords referred to the judgment Simon Brown LJ in the Court of Appeal where at [38] to [42] he had set out the appropriate approach to the grant of injunctions under Section 187B. Those principles may be summarised as follows:(1) On such an application the Judge is not required nor even entitled to reach his own independent view on the planning merits of the case;(2) The Judge should consider all questions of hardship for the defendant and their family if required to move, including the availability of suitable alternative sites and questions of the family’s health and education;(3) The Judge should consider the need to enforce planning control in the general interest and the planning history of the site;(4) The degree and flagrancy of the breach of planning control may prove critical and also the question whether conventional enforcement measures have failed over a prolonged period of time;(5) The period of occupation of the site. Preventing gypsies from moving onto a site might involve less hardship than moving them out after a long period of occupation;(6) Recent planning decisions and the decision of the Council to seek injunctive relief may be relevant but the relevance and weight will depend on the extent to which those decisions have had regard to all the material considerations.(7) A broad view of the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end.(8) The injunction must be proportionate so that the injunction is not only appropriate and necessary for the attainment of the public interest objectives sought in safeguarding the environment but also does not impose an excessive burden on the individual whose rights to a private life and home and the retention of ethnic identity are at stake.[31]In Mid Bedfordshire District Council v Brown [2005] 1 WLR 1460 a gypsy had bought land within the Green Belt. The council had applied for an injunction under Section 187B when they became aware of unauthorised works being carried out. In breach of that injunction the defendants moved their caravan onto the land and then submitted an application for planning permission for change of use to a gypsy residential site. The Council sought an injunction prohibiting the change of use in breach of planning control and an injunction was granted but suspended on the ground that the interests of the safety and stability of the young children on the site overrode the objective of safeguarding the environment.[32]The decision to suspend the injunction was reversed on appeal. Mummery LJ giving the judgment of the court said at [25] that the Judge’s decision to suspend the injunction pending the determination of the planning application did not take proper account of the vital role of the Court in upholding the important principle that the Orders of the Court are meant to be obeyed and not to be ignored with impunity. He said this at [25] to [26] “25….The proper course for the defendants to take, if they wished to challenge the order, was to apply to the court to discharge or vary it. If that failed, the proper course was to seek to appeal. Instead of even attempting to follow the correct procedure, the defendants decided to press on as originally planned and as if no court order had ever been made. They cocked a snook at the court. They did so in order to steal a march on the council and to achieve the very state of affairs which the order was designed to prevent. No explanation or apology for the breaches of the court order was offered to the Judge or to this court. 26. The practical effect of suspending the injunction has been to allow the defendants to change the use of the land and to retain the benefit of occupation of the land with caravans for residential purposes. This was in defiance of a court order properly served on them and correctly explained to them. In those circumstances there is a real risk that the suspension of the injunction would be perceived as condoning the breach. This would send out the wrong signal, both to others tempted to do the same and to law abiding members of the public. The message would be that the court is prepared to tolerate contempt of its orders and to permit those who break them to profit from their contempt.”[33]In South Cambridgeshire District Council v Gammell [2006] 1 WLR 658 the Court of Appeal considered two appeals. In the Gammell case itself, the local authority had obtained an injunction under Section 187B and the defendant has subsequently entered onto the land with a caravan and the terms of the injunction had been explained to her. It was held that in relation to subsequent committal proceedings the Court was not required to exercise a discretion or carry out the balancing exercise indicated in Porter. At [28] Sir Anthony Clarke MR, with whom the other members of the Court of Appeal agreed, said this:
“28. The crucial distinction between these cases and the South Bucks case is that, whereas in the South Bucks case each of the respondents was in occupation of the land when the injunction was granted, that was not true in this case. In these appeals each of the appellants became an occupier of the land after the injunction was granted. It follows that the ratio of the decision in the South Bucks case does not apply directly to the facts of these appeals.”
[34]He then referred to the decision in Mid Bedfordshire v Brown and said this at [31] and [32]:31. Those principles inform the correct approach of the courts to cases in which defendants occupy or continue to occupy land without planning permission and in disobedience of orders of the court. As I see it, those principles are relevant, or potentially relevant, in circumstances in which a defendant seeks to vary or set aside an order of the court. However in this case Mr Paget seeks to apply the principles in the South Bucks case [2003] 2 AC 558, and perhaps also Mid Bedfordshire District Council v Brown [2005] 1 WLR 1460, on an application to add a person such as each of the appellants here as a defendant to the action.32. In my opinion that submission cannot be accepted. In each of these appeals the appellant became a party to the proceedings when she did an act which brought her within the definition of defendant in the particular case.”[35]He continued at [33]: 33. By the time of the committal proceedings, in each case the appellant was a defendant to the proceedings, was in breach of the injunction and, given her state of knowledge, was in contempt of court. Those conclusions follow in each case from the terms of the injunction, the actions of the appellant and the state of knowledge of the appellant. The conclusions do not depend upon any judicial decision involving the exercise of any discretion or balance on the part of a Judge. The exercise of such a discretion or balance only arises on an original application by a claimant for an injunction against a named party, on any subsequent application to vary or discharge by a person named as a defendant, and affected by the injunction, and to some extent at least in the course of a sentencing exercise. In the light of the principles in the authorities and those conclusions I would summarise the position as follows.(1) The principles in the South Bucks case set out above apply when the court is considering whether to grant an injunction against named defendants.(2) They do not apply in full when a court is considering whether or not to grant an injunction against persons unknown because the relevant personal information would, ex hypothesi, not be available. However this fact makes it important for courts only to grant such injunctions in cases where it is not possible for the applicant to identify the persons concerned or likely to be concerned.(3) The correct course for a person who learns that he is enjoined and who wishes to take further action, which is or would be in breach of the injunction, and thus in contempt of court, is not to take such action but to apply to the court for an order varying or setting aside the order. On such an application the court should apply the principles in the South Bucks case.(4) The correct course for a person who appreciates that he is infringing the injunction when he learns of it is to apply to the court forthwith for an order varying or setting aside the injunction. On such an application the court should again apply the principles in the South Bucks case.(5) A person who takes action in breach of the injunction in the knowledge that he is in breach may apply to the court to vary the injunction for the future. He should acknowledge that he is in breach and explain why he took the action knowing of the injunction. The court will then take account of all the circumstances of the case, including the reasons for the injunction, the reasons for the breach and the applicant's personal circumstances, in deciding whether to vary the injunction for the future and in deciding what, if any, penalty the court should impose for a contempt committed when he took the action in breach of the injunction. In the first case the court will apply the principles in the South Bucks case and in the Mid Bedfordshire case.(6) In cases where the injunction was granted at a without notice hearing a defendant can apply to set aside the injunction as well as to vary it for the future. Where, however, a defendant has acted in breach of the injunction in knowledge of its existence before the setting aside, he remains in breach of the injunction for the past and in contempt of court even if the injunction is subsequently set aside or varied.(7) The principles in the South Bucks case are irrelevant to the question whether or not a person is in breach of an injunction and/or whether he is in contempt of court, because the sole question in such a case is whether he is in breach and/or whether he is in contempt of court. It should be noted that neither appellant applied to the Judge for an order varying the injunction for the future. It follows that the Judge had no proper opportunity in each case to apply those principles to the case before her.”[36]Finally, I was referred to the decision of the Court of Appeal in Broxbourne Borough Council v Robb and Others [2011] EWCA Civ 1355 which was a decision on an application for permission to appeal against the refusal to vary an injunction. Tomlinson LJ said this at [34]:
“This is a case where the site has been occupied for residential use after the Court had already granted an injunction prohibiting such use. Although the appellant Mr Beary, did not know when he bought the land that it was the subject of an injunction, and did not know that it was subject of an injunction when he entered into occupation with his family in July or August 2010, the position was fully explained to him within about four months of his moving his family onto the land. In full knowledge that he was acting in breach of a court order, he continued to occupy the land. It was not until after the Council had applied to commit him for contempt that he applied to vary the injunction.”
[37]Tomlinson LJ then continued at [35] to [37] and said this:
“35. I fully acknowledge the force of those points and I am prepared to accept that the conduct of Mr Beary, as it has been described to us, is by no means in the same category as the conduct of some others whose cases have been considered and, in particular, the conduct of the defendant in Mid Bedfordshire District Council v Brown[2005] 1 WLR 1460. There are respects in which this is very far from being the worst sort of case of its type. 36. Nonetheless the position remains that this is, as I have said, a case of a deliberate contempt, persisted in once it was fully appreciated that the conduct was indeed in breach of a court order. I should add that there is no evidence before the court of the appellant taking any step whatever to secure either an alternative site or alternative accommodation once he became aware that he was in breach of the court order. He asserts that he has nowhere else to go. That, of course, is not entirely the point. Thus I reiterate that the court is here faced, albeit it may not be the worst sort of case, with deliberate flouting of the order. 37. It follows, in my judgment, that to accede to an application to vary the injunction in circumstances such as these would in fact in practical terms amount to condoning the breach, because it would send out the message that the court is prepared to tolerate contempt of its orders in certain circumstances and to permit those who break them to profit from their contempt. The appellant would indeed profit from his contempt if the injunction were now varied in the manner suggested, because he would have achieved, until resolution of the planning appeal, change of use of the land and he would have secured to himself and to his family the ability to live on the land in a manner which would have been denied anyone who went through the normal processes and procedures of first seeking planning permission before proceeding to act as if it had already been granted.”
[38]At [38] Tomlinson LJ held that the Judge correctly summarised the effect of the authorities on the approach to be taken in these circumstances and said this at [41]:
“41. Thus after a full discussion of the authorities the Judge directed himself as follows at paragraph 43 of his judgment: "Thus point 5 in the passage from Sir Anthony Clarke's judgment in Gammell applies: the application to vary is governed by the principles set out not only in South Bucks District Council v Porter, but also in Mid Bedfordshire District Council v Brown. Certainly it is appropriate that the principles in South Bucks District Council v Porter have some purchase in a case like the present since at the time the injunction was issued, indeed at the time that the application to commit was authorised, there was no knowledge of Mr Beary and no consideration of his personal circumstances. Thus in considering the application to vary it is necessary for me to consider (1) planning issues, such as the planning merits, the planning history, including the length of unlawful occupation of the site, and the availability of suitable alternative sites; (2) the personal circumstances of the family, including the implications of Article 8 of the European Convention of Human Rights, and the consequences were the injunction to remain in its current form; and (3) the overarching public interest in ensuring that court orders are respected and obeyed.” "Thus point 5 in the passage from Sir Anthony Clarke's judgment in Gammell applies: the application to vary is governed by the principles set out not only in South Bucks District Council v Porter, but also in Mid Bedfordshire District Council v Brown. Certainly it is appropriate that the principles in South Bucks District Council v Porter have some purchase in a case like the present since at the time the injunction was issued, indeed at the time that the application to commit was authorised, there was no knowledge of Mr Beary and no consideration of his personal circumstances. Thus in considering the application to vary it is necessary for me to consider (1) planning issues, such as the planning merits, the planning history, including the length of unlawful occupation of the site, and the availability of suitable alternative sites; (2) the personal circumstances of the family, including the implications of Article 8 of the European Convention of Human Rights, and the consequences were the injunction to remain in its current form; and (3) the overarching public interest in ensuring that court orders are respected and obeyed.”
[39]In the present case, as in other cases, when the Appellant took up occupation of the Land there was the existing Injunction in place which had been granted against Mrs Smith. The judge found that the Appellant was aware of the injunction before she took up occupation and, in any event, it is clear that very shortly after taking up occupation the Appellant was made aware of the terms of the Injunction. It follows that unless and until the Injunction was varied the Appellant was in breach of the terms of a Court Order and, as set out above, was sentenced to a suspended sentence as a result of committal proceedings.[40]On the application to vary the Injunction Her Honour Judge Cameron was referred to, and considered, Broxbourne v Robb and Mid Bedfordshire District Council v Brown and during her judgment correctly referred to the various factors which are relevant on a decision to vary an injunction where the applicant is occupying a site in breach of a current injunction. I therefore consider that the Judge was aware of and applied the relevant law when considering the application to vary the injunction.[41]I now turn to consider the detailed grounds relied upon by Mr Jones. Ground 1: Failing to recognise that the Appellant could not have evicted her husband from the Council house and remained within her Gypsy community.[42]This ground is based on a submission that the Judge wrongly took account of the fact that the Appellant had a property interest in a house at 19 Louvain Road in Greenhithe which had been the subject of a Deed of Separation.[43]At paragraph 4 of her judgment the Judge referred to the fact that the Appellant was married and entered into a Deed of Separation in 2004 with her husband, Mr Daniel Coates senior. She held that it was plain that the Appellant had exercised her right to buy that house in Greenhithe which was her council house in 2003 and therefore that she had that house available to her and could always have lived there with her children.[44]At paragraph 7 she referred to the fact that the Deed of Separation stated that the couple had lived separate and apart from 14 November 2003 when the Appellant and the children left the former matrimonial home in Greenhithe and the property was given solely to Mr Daniel Coates.[45]Although not in evidence it was said that there had been domestic violence between the Appellant and her husband. At paragraph 24 the Judge referred to the fact that there had been no court proceedings in relation to that and she said at paragraph 25 “While she may not be able to read or write herself, she is a lady who has been able to access the help of solicitors, she is represented by Counsel today, and also this planning consultant Mr Phillips has assisted her so I do not accept that she could not have availed herself, if need be, of Court Orders in relation to that alleged domestic violence. Her husband has been very willing recently to assist her, in any event and they seem to have a civilised and amicable working relationship, if not an emotional relationship, although I am not convinced about that, to help her to try and find alternative property.”[46]On the evidence before the Judge, the Judge was entitled to question the allegation of domestic violence which had not been dealt with in any of the evidence as part of her consideration of the nature of the continuing relationship between the Appellant and her husband. She was also entitled to note that in 2011 Mr Phillips had met the Appellant and her husband when they were both considering applying for planning permission for a gypsy caravan on land near Staplehust in Kent. On this basis the Judge was entitled to consider the availability of the property in Greenhithe and the subsequent receipt by the Appellant of £76,000 from the sale of that property and I do not consider that there are real prospects of successfully appealing on the basis of any misunderstanding by the Judge as to the reality of life for a gypsy woman like the Appellant or of any failure by the Judge to recognise that the Appellant could not have evicted her husband from the house. There was no evidence of any particular impact that would have had within the gypsy community. Ground 2: Failure to recognise the Appellant’s cultural traditions when commenting on the Appellant’s decision to manage her son’s serious disability within a caravan.[47]The Judge referred to the fact that the Appellant’s oldest child, Danny, who is aged fifteen, is very severely disabled as set out in reports from Great Ormond Street Children’s Hospital. She observed that Danny had been in Court in a very substantial wheel chair and obviously had major medical needs. At paragraph 4 of her judgment the Judge commented that, from Danny’s point of view and his major physical needs, it seemed to her that to manage those in a caravan was “quite challenging”and it was“surprising” that the Appellant would want to do so.[48]However at paragraph 16 of the Judgement she noted that, although living in “bricks and mortar” accommodation would very probably be more appropriate and certainly convenient for the care of Danny, the caravan was especially adapted and had a ramp to move his wheelchair into the caravan for his comfort at night. The Judge noted that caring for Danny in the caravan would be challenging and, for that reason, she said she found it surprising. However she equally held that the caravan had been specially adapted to allow for Danny’s needs. I do not consider that in relation to this aspect there is a ground of appeal which has any reasonable prospect of success based on the Judge’s findings. Ground 3: The Judge’s misunderstanding of the disagreement between the Appellant and her parents and her speculation that a discussion could lead to her returning to live with them in Essex.[49]The Appellant’s evidence was that she had lived with her parents in Essex since she was about 15 years old although she had occasionally travelled away for some months. She had therefore lived with them for a considerable period of time and the Judge was entitled to say that she was not convinced that the Appellant could not return to Essex and that there could not be some family discussion to allow her to return there. I do not consider that the Judge’s finding gives rise to arguable grounds of appeal. Ground 4: The finding that the Appellant benefited from the proceeds of sale from 19 Louvain Road, Greenhithe of £76,000 was contrary to the evidence.[50]At paragraphs 8 and 9 of her judgment the Judge referred to the fact that, only 11 days before the Appellant moved onto the Land, she had benefited from the sale of this property in the sum of £76,000. She said that the Appellant did not need to borrow £5000 from her husband, as she said she did, as she had £76,000 and could have rented a property or land.[51]I consider that the Judge was entitled to come to that conclusion on the basis that, as the evidence showed, the Appellant had remained a registered proprietor of the property until 1 May 2012 and was named on the mortgage. Her Solicitors wrote to her on 2 May 2012 confirming that funds from the property had been transferred to her bank account enclosing a completion statement which showed a deduction of £6,000 in relation to land at Dartford Road, Sutton at Hone.[52]Whilst the Appellant said that the money had gone to her husband and exhibited bank statements showing large withdrawals of cash, the Judge was entitled to come to the conclusion at paragraph 9 of her judgment that the Appellant could have rented a property or rented some land with the proceeds. I do not consider that the Judge’s findings give rise to arguable grounds of appeal. Ground 5: The assumption that the Appellant could have moved to the site owned by her uncle, Mr Harber.[53]The Judge was entitled to rely on the evidence from Mr Legg of the Council that since 2007 he had witnessed no more than three caravans or mobile homes on the Appellant’s uncle’s site at the Tennis Courts, when there was permission to station five caravans there. There were two documents said to have been signed by the uncle, Mr Alfie Harber. In the first he said that the family would be there to care for and support the Appellant. In the second he said he did not have any spare pitches and that the pitch was not adapted for disability needs.[54]The Judge had seen those two statements in different handwriting with different signatures and was entitled to question their credibility and the underlying question of the Appellant’s ability to move to one of those pitches. I do not consider that there are real prospects of successfully appealing this finding by the Judge. Ground 6: The Judge’s rejection of Mr Phillip’s evidence that he did not know of the Injunction.[55]In his witness statement Mr Phillips gave evidence of his involvement in the injunction proceedings against Mrs Smith. He said that his evidence was required on the issue of whether or not Mrs Smith was residing at the site when I met her. At paragraph 8 he stated:
“I was not aware at that time, nor subsequently, that the injunction sought by Dartford Borough Council would have the effect of preventing occupation of the land by any party.”
[56]He said in relation to the later approach from Mr Harber that he had no direct contact with the Appellant since he met her in September 2011.[57]The Judge was entitled to conclude that as Mr Phillips knew about the Injunction from his previous involvement and that it would be a matter which was relevant when he came to be instructed by Mr Harber. The Judge was also entitled to find in paragraph 26 that it was “absolutely remarkable and bordering on the incredible” that Mr Phillips would not have mentioned the Injunction. This does not give rise to an arguable ground of appeal. Ground 7: The Judge’s speculative finding that the Appellant would have discussed the Injunction with Mr Harber, Mr Phillips and her estranged husband[58]At paragraph 18 the Judge held, on the balance of probabilities, that the Appellant knew far more about the background to the site and, in particular, knew about the Injunction. The Judge referred to discussions which would have taken place between the Appellant, Mr Phillips and Mr Harber.[59]I consider that the Judge was entitled to come to the conclusion that the Appellant would have known about the existence of the injunction proceedings when purchasing the site. Whilst the searches do not refer to the Injunction, it is noteworthy that Mr Phillips did not say that he did not mention the Injunction to Mr Harber and, in any event, Mr Harber lives in the community close to the Land. I consider that the Judge was entitled to come to the conclusion that the Appellant would have known about the injunction before purchasing the Land. Ground 8: The Judge’s finding that the Appellant had alternative forms of accommodation was not supported by the evidence.[60]The Judge found that the Appellant could have resided at the Tennis Courts site owned by her uncle (paragraph 11 of her judgment); that the Appellant had funds from the sale of the property at Greenhithe (paragraph 9 of her judgment) or that the Appellant could return to her family in Essex (paragraph 6 of her judgment). In addition, the Council had made an offer of “bricks and mortar” accommodation as stated by the Appellant in her second witness statement. The Judge was therefore entitled to come to the conclusion that there was alternative accommodation available to the Appellant and I do not consider that an appeal against that finding has real prospects of success.[61]It follows that I do not consider that the Appellant can successfully challenge the findings made by the Judge in relation to the Grounds set out above. The Judge was entitled to take those findings into account in applying the law to the application to vary the Injunction. Article 8 Rights[62]In relation to the Ground of Appeal based on a failure to take account of the Appellant’s rights under Article 8 of the European Convention on Human Rights, it is evident that on a Section 187B application the grounds cover matters which are relevant to the consideration of those rights. In this case the Judge did take into account the personal circumstances of the Appellant.[63]In South Bucks v Porter at [89] Lord Hutton said this and at [37] Lord Bingham expressed a similar view:
“I consider that the factors stated by Simon Brown LJ properly reflect the considerations which in Chapman the European Court stated should be taken into account and that a court which follows the guidance given by him will be acting compatibly with article 8.”
[64]I consider that on the basis set out above the Judge properly considered the matters relevant to an injunction under Section 187B when dealing with the application to vary the Injunction and that the Appellant’s rights under Article 8 were therefore properly taken into account. Duty of Common Humanity[65]The Appellant also seeks to rely on a Ground of Appeal founded on the reference by Sedley J, as he then was, in R v Lincolnshire County Council ex parte Atkinson 8 Admin LR 529 where, at 535, he referred to a “duty of common humanity”.[66]In that case Sedley J was considering what matters would be material to the exercise of a local authority’s powers to remove unauthorised campers under Sections 77 to 79 of the Criminal Justice and Public Order Act 1994. He was referred to various passages in advisory circulars and a concession by Counsel that, whether or not certain matters were spelt out in the departmental circulars, those matters would be material considerations.[67]Sedley J considered the concession to be rightly made because those matters were “considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security.”[68]I do not consider that this gives rise to any independent “duty of common humanity”. Rather, as explained in Porter, Brown, Gammell and Robb, it is necessary to take the relevant factors into consideration when dealing with an application for or to vary an injunction under Section 187B. The Council’s failure to comply with guidance[69]Mr Jones relied heavily on the fact that the Appellant’s predicament arose from what he described as the Council’s chronic non-compliance with Government guidance on the provision of accommodation for gypsies and travellers. There was a dispute between the parties as to what provision should have been and was made by the Council in relation to Gypsy and Traveller sites.[70]However, on the findings of the Judge which I have concluded are not subject to appeal, the Appellant had various opportunities of living in alternative accommodation. This is not a case where the Appellant had nowhere to go apart from the Land. I consider that the Judge, on the findings she made, was entitled not to take into account the question of what other accommodation the Council might have made available under Government Guidance in coming to her conclusion. Summary and conclusion[71]It follows that I do not consider that this is a case where I should give permission to appeal. In her extempore judgment the Judge referred to all the factors which were raised on the application to vary the Injunction. She was entitled to and did make findings based on inferences from the evidence before her. She was entitled to conclude that this was a case where balancing the Appellant’s personal needs, the opportunities for alternative accommodation, the Appellant’s knowledge of the Injunction, the Appellant’s failure to obey the Injunction and the other factors mentioned in her judgment, the Injunction should not be varied.[72]Even if I had come to the conclusion that this was a case where any of the Grounds of Appeal gave arguable grounds of appeal I would not have differed from the conclusion of the Judge. First, this is a site within the Metropolitan Green Belt as recognised by the inspector when dealing with an appeal in respect of the Tennis Courts site. Siting of a caravan amounts to inappropriate development in the Green Belt and reduces its openness and harms the appearance of the special landscape area.[73]Secondly the Council has refused development on the Land in the past except allowing stabling and a caravan for a night watchman for a temporary period. The Council had then sought and obtained the Injunction.[74]Thirdly the Applicant and her children have personal needs for accommodation which will maintain their cultural way of life. However in the past, the Appellant has resided in bricks and mortar accommodation, purchased a council house and is currently living in bricks and mortar accommodation.[75]Fourthly there are the very real needs arising from the necessary care for the Appellant’s seriously disabled son, Danny. Whilst respect must be given for the wish of the Appellant and her son to maintain the traditional way of life, the particular disabilities can be dealt with in alternative accommodation which, as the Judge found, was available to the Appellant.[76]Fifthly the Claimant’s unlawful occupation of the site commenced in May 2012 and was unlawful from the beginning. It is the clear inference that the Appellant would have learned of the Injunction proceedings either through her own conversations or from conversations which Mr Harber would have had when acting on her behalf in the property transaction.[77]Sixthly, as a result this is a case where the Appellant entered the site in disobedience of a Court Order which remained in effect.[78]In such circumstances, balancing those factors on an application to vary an injunction under Section 187B where the relevant land necessarily does not have planning permission for a residential caravan, I do not consider that there would be grounds on which, in any event, the Injunction would have been varied.[79]As a result, I refuse the Appellant’s applications and the Injunction stands in the terms of the Injunction contained in the Order of 5 October 2011.