South Cambridgeshire District Council v Fleet Sother Cooke (aka Paul Sanderson) & Anor [2015] EWHC 3538 (QB)

Case No HQ15X02927[2015] EWHC 3538 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 December 2015
Before
HH JUDGE RICHARD PARKES QC
Between
SOUTH CAMBRIDGESHIRE DISTRICT COUNCILClaimant(1) FLEET SOTHER COOKEDefendants(2) ADMINISTRATORS OF THE ESTATE OF FREDA COOK (deceased)Defendant
Ms Saira Kabir Sheikh QC (instructed by Sharpe Pritchard LLP) for Claimant for The Defendants were neither present not representedHearing Hearing date: 17 November 2015
JudgmentHH Judge Richard Parkes QC:
[1]On 17 November 2015 I made the order sought by the claimant, South Cambridgeshire District Council (SCDC), under s187B, Town and Country Planning Act (‘TCPA’) 1990. These are my reasons for doing so.

THE LAND

[2]The claimant is the statutory local planning authority for South Cambridgeshire, and in particular for land occupied by the first defendant at Hill Trees, Babraham Road, Stapleford, which is green belt land lying just outside the city of Cambridge. There is no doubt that the first defendant has at all material times been the occupier of the land and the person controlling the activities which have taken place there. For instance, he responded to an enforcement notice on one part of the land in 2005; in September 2009 he responded to a planning contravention notice (PCN) served by SCDC, stating that he was responsible for the car sales business which was being conducted on the land; and in April 2013, he responded to a further PCN by stating that the land was under his control and had been sold to him by a Mrs Freda Cook.[3]The ownership of the land occupied by the first defendant is in fact far from certain. The land to which the application relates is the area marked A, B and C on the plan exhibited to the witness statement of Mr Charles Swain (SCDC Principal Planning Enforcement Officer) of 29 June 2015 at CRS1. It adjoins the main A1307 road from Cambridge to Babraham. Area A has residential use, and is the location of a house, a former pub, which was occupied by Mrs Freda Cook, who is no relation of the first defendant. She seems to have used the land as a whole for a horticultural nursery. She may have been the beneficial owner of at least areas A and B, although her title was not registered. According to Mr Swain, Mrs Cook died intestate on 17 August 2013. She had moved out of Hill Trees to the first defendant’s address at 136 Perne Road, Cambridge in the course of 2012. During her final illness, he sought to arrange to be married to her, but this was not allowed by the hospital because her capacity was in doubt. The present position is that the house and land at areas A and B are subject to a caution against first registration, registered by the first defendant on 19 July 2012, and the Land Registry records him as holding possessory title of the land at area C, registered on 12 March 2013.[4]It is not known what views the administrators of the estate of Freda Cook, who have been joined as second defendant but have played no part in these proceedings, may have on the true ownership of the Hill Trees land. Such questions are not material to the current application, because, as I have said, it is plain that the first defendant is and has at all material times been in occupation of the Hill Trees land. That is all that matters from the point of view of planning controls.[5]For the sake of completeness, it should be mentioned that there is a further strip of land, area D, which lies behind areas A and B, which was occupied by the first defendant in 2000 but was later found to belong to the neighbouring golf club. His incursion onto that land was dealt with by the owner, and it is not part of the land to which this application relates.

PERMITTED USE OF THE LAND

[6]The permitted use of area A has at all material times been residential, and that of areas B and C has been agricultural.

ACTUAL USE OF THE LAND

[7]The land no longer comprises three planning units, but rather a single planning unit in mixed residential and commercial use. The commercial use, for which there is no planning permission, appears to involve the storage and sale of motor vehicles.

PLANNING HISTORY

[8]It appears from the evidence of Mr Swain and Mr Anthony Pierce, Interim Development Control Manager of SCDC, that the first defendant has persistently flouted the planning control regime, and that it is as a result of his refusal to abide by planning control that SCDC decided to make the present application.[9]The history of the first defendant’s failures of compliance with planning controls goes back to his occupation in 2000 of area D, the land behind areas A to B. An enforcement notice (E415) was served on the first defendant in relation to that land, because he was using it for the storage of motor vehicles, caravans, mobile homes and the like. He appealed against that enforcement notice to the planning inspector, who dismissed his appeal. It appears that the enforcement notice was eventually complied with, after the golf club recovered possession of the land.[10]In February 2005, an enforcement notice (E499) and a stop notice were served on the first defendant in relation to the eastern part of the land, area C. That was because there had been a material change of use from agricultural use to the storage of motor vehicles, caravans, containers and other items. The notice required items not connected with agricultural use to be removed. The first defendant appealed against the notice. His appeal was dismissed by the inspector in October 2005. The High Court (Calvert-Smith J) refused him permission to challenge the inspector's decision at an oral hearing on 27 February 2006.[11]In April 2006 the first defendant made a retrospective application for planning permission for the erection of a Nissen hut and mobile home on area C. Permission was refused in September 2006, and on 29 January 2008 his appeal to the inspector against refusal of planning permission was dismissed.[12]In May 2007, Mr Swain visited both area C and another property owned by the first defendant, Riverside Stables in Little Abington, to ascertain whether enforcement notice E499, and another notice (E340) served in relation to Riverside Stables, had been complied with. They had not. In the result, the first defendant was prosecuted for his failure to comply. On 11 December 2007, he appeared at Cambridge Crown Court to answer two counts under section 179, TCPA 1990. The first count related to area C, and the second to Riverside Stables. The first defendant pleaded guilty to count 2, but because of difficulties with the quality of the photographic evidence, and in the light of the first defendant’s agreement to enter a guilty plea to count 2, SCDC offered no evidence on count 1, which accordingly was dismissed. According to the witness statement of Mr Gary Duthie, a senior lawyer with SCDC, the decision to offer no evidence on count 1 was in consideration of the guilty plea to count 2. Notwithstanding that he had entered a guilty plea on count 2, the first defendant appealed in person against his conviction to the Court of Appeal, a year out of time, on the basis that because of his commitments to his elderly mother he had not been able to attend for the two or three days that a full trial would have taken, and that his application to vacate the trial date had been refused. Accordingly, he argued that he had been denied justice. That account was not supported by the evidence of his solicitors, which showed (privilege having been waived) that his guilty plea had followed advice outside court and discussions between his lawyers and prosecution counsel, and that no application for an adjournment of the hearing had in fact been made. Unsurprisingly, his application for leave to appeal out of time was refused. It is worth noting that the conviction on count 2 had followed service of an earlier enforcement notice in relation to Riverside Stables, with which he had not complied either, resulting in an earlier prosecution, a guilty plea, and on that occasion also an application for leave to appeal, which then also had been dismissed.[13]Notwithstanding the first defendant’s conviction in respect of Riverside Stables, he took no steps to comply with enforcement notice E499, which applied to area C. The Council resolved to take direct action, and unauthorised items were removed by bailiffs on 7 May 2008.[14]On 26 August 2009 the council issued a planning contravention notice in respect of the land, because of an apparent breach of planning by change of use. A number of questions were asked, which were answered by the first defendant on 20 September 2009 from his address at 136 Perne Road, Cambridge. In answer to the question ‘When did the car sales business first commence at Hill Trees?’ The defendant replied ‘Established’. He said that 6 to 8 vehicles were stored on the premises and that approximately one was sold every week.[15]On 3 February 2010, a further enforcement notice (PLAENF 3837) was served upon the first defendant in relation to areas A and B, alleging breach of planning control by change of use from residential to a mixed use of residential and the sale and repair of motor vehicles. The notice required the first defendant to cease using the land for the sale and repair of motor vehicles.[16]The first defendant appealed to the Inspector against the enforcement notice, and on 4 November 2010, the appeal was dismissed. The first defendant challenged the inspector’s decision in the High Court under s289 TCPA. His application for permission to appeal, made in person, was refused on 18 October 2011 by Ouseley J. In November 2011, the first defendant attempted to appeal against the order of Ouseley J, but (no appeal lying against a refusal of permission under s289) the Court of Appeal declined to hear his application.[17]Notwithstanding the failure of his appeals, the first defendant did not comply with enforcement notice PLAENF 3837. The were now 2 outstanding enforcement notices in relation to the land, and on 15 February 2012 the Planning Enforcement Sub-Committee of the council resolved to authorise direct action for removal from the site of all unauthorised vehicles and items. The first defendant applied for judicial review of the council's proposed use of direct action powers (as expressed in a letter from the council dated 19 December 2011 which pre-dated the council’s actual decision), and for interim relief. On 27 January 2012, Lindblom J refused his application for interim relief, stating that in the light of the planning history of the land, he saw no justification for interfering with the steps which SCDC was taking to enforce lawful planning control.[18]However, after two further hearings it was realised that SCDC ought not to rely further on its decision of 15 February 2012, because of steps which the first defendant had taken to comply (if that is the word) with the two enforcement notices. In short, it emerged that what he had done had been to rearrange his use of the land, so that the land the subject of the enforcement notice against storage (area C) was now used for the sale and repair of motor vehicles, and that covered by the notice against sale and repair of vehicles (areas A and B) was now being used for storage. Of course, the first defendant remained in breach of planning control, but he was no longer in breach of either enforcement notice.[19]On 19 April 2012 Mr Swain visited the land in company with Councillor Charles Nightingale, who represents the Stapleford ward, in which High Trees is situated. Cllr Nightingale’s concern seems to have been prompted by complaints from constituents about the site, including complaints about the depositing of household waste on land designated for agricultural use. The first defendant was present, and explained that he was recycling waste from the main residence at Hill Trees, the house that belonged to Mrs Freda Cook, who was then living at the first defendant’s house at 136 Perne Road, Cambridge. He admitted that he had no licence to deal with waste on the site. Cllr Nightingale drew Mr Swain’s attention in June 2013 to correspondence from the local MP, Andrew Lansley, concerning complaints from local people and a local organisation about the state of the site and the safety of its access onto the A1307 road.[20]According to the evidence of Mr Swain, the situation on the land has deteriorated substantially since 2012. He has visited the site on a number of occasions. His account shows that since Mrs Freda Cook left Hill Trees in 2012 on account of her ill-health, the first defendant has further changed and intensified his use of the land. When he visited the site on 4 April 2013, he found that the first defendant had stationed over 20 motor vehicles, a heavy goods vehicle and a touring caravan within area C, together with quantities of scrap and waste materials, in apparent breach of enforcement notice E499. Several other vehicles were parked on area B, including a horsebox, transporter and trailer, a JCB digger.[21]When Mr Swain returned seven days later, he found that a new access track had been constructed from hard-core across the middle of area B, and was being extended into area C. Additional loads of hard-core had been delivered, and this was later used to extend the track so that it ran from area A to area C, thus in effect unifying the three plots of land. In addition, a mobile home had been positioned on area B. Quite apart from the unlawful change of use of the land from agricultural to commercial, both the construction of the track and the stationing of the mobile home required planning permission, which had not been applied for. A planning contravention notice was issued in respect of those matters on 15 April 2013.[22]When Mr Swain again visited on 22 July 2013 the new access road had been extended into area A. It was clear that the whole site (areas A, B and C) was being used as a single whole, with the access road running east to west through the centre of the land. SCDC takes the view, which is well supported by the aerial photographs which are exhibited to his witness statement, that the whole site is now a single planning unit with a mixed residential and commercial use. That use, according to Mr Swain’s evidence, represents a material change in the use of the land, constituting development for the purposes of s55, TCPA 1990.[23]It is probably worth noting, to give the full flavour of D1’s attitude towards planning controls, that it was discovered in September 2013 that he had placed a mobile home on the land at Riverside Stables and let it to a third party. That was a further breach of the enforcement notice in respect of which he had been convicted. D1 then submitted a retrospective application for planning permission for the mobile home, which was refused, following which his appeal against refusal was dismissed by the planning inspector.[24]In September 2013, vehicles were for sale on area C, with advertisements for car sales on the fencing at the entrance to the land. In October 2013, additions to area C included the rear part of a lorry, used for storing household furniture, a fuel tank and a dismantled Nissen hut. On area B there were numerous vehicles, including a static caravan, two flatbed lorries, a motorhome, two vans and a diesel generator. In January 2014, area C had gained a trailer loaded with scrap tyres, a flatbed lorry, a minibus and three motor cars, one displaying a ‘for sale’ sign; while area B again had numerous vehicles and trailers on the land, together with what appeared to be scrap household items and plastic crates. So matters continued. All the usage of the land which Mr Swain described was unlawful use of the land and a breach of planning control.[25]Mr Swain has also formed the view that the unlawful use of the Hill Trees land creates dangers for highway safety. His evidence shows that the A1307 is a busy main road along which traffic travels at high speed. There is a history of accidents close to the site, and no proper access into it. The use of the land for storage, sale or repair of motor vehicles involves a significant number of turning movements into and out of the site, which would not happen if the land were used, as it should be, for purely residential and agricultural purposes. It is worth noting, in that context, that in 2012 the first defendant received a fixed penalty notice from Cambridgeshire County Council in 2012 in respect of the sale of cars from the cycle path immediately in front of the Hill Trees land. According to Mr Swain, the first defendant appealed the fixed penalty notice but was convicted: he then made a further appeal against the court's decision, but withdrew it just before the hearing.[26]A further inspection of the site took place on 24 April 2015. It appeared that area C had still more vehicles advertised for sale than Mr Swain had observed on a visit in August 2014. In addition, eight 1.8m fencing panels had been erected without planning consent. A number of photographs were taken (exhibited as CRS 40). They show a desolate and squalid scene of apparently decaying vehicles and caravans, intermingled with other rubbish, including old tyres and discarded plastic containers. On no view could the use of the land be described as agricultural.

PLANNING COMMITTEE REPORTS

[27]Two reports by planning officials to the council’s planning committee are exhibited to the witness statement of Mr Pierce. They are dated 2 October 2013 and 7 May 2014, and are in similar terms, both recommending application to the court for an injunction in accordance with s187B.[28]The planning committee met in October 2013 to consider the first report, which recommended that officers be authorised to apply to the court for an injunction designed to put an end to unlawful use of the land. The committee was addressed by the first defendant, and was able to consider his representations. According to the evidence of Mr Pierce, he put to the planning committee his arguments for retaining the use, why the use was justified in planning terms, and his personal circumstances. Mr Pierce does not state what those circumstances were, but his point is that they were taken into account by the committee in reaching its decision. The first defendant’s representations included a request that the committee should defer consideration of the matter, and he claimed that the council had undertaken not to enforce against the site, and that the Crown Court had judged him to be not guilty of any breach of planning control on the Hill Trees land. The committee was advised by officers present that the only undertaking offered by the council had been one not to act on an earlier resolution to take direct action, and that the Crown Court finding related only to the decision to offer no evidence on the alleged breach of an enforcement notice. The committee resolved to pursue its remedies to address the breaches of planning control.[29]The second report, which updated the position following a site visit on February 2014, and after the terms of the proposed order had been discussed with solicitors and counsel, was placed before the committee at its meeting on 7 May 2014. It is worth summarising the effect of the two reports.[30]They explained that the site lay within the Cambridge green belt and was within an area of undeveloped open countryside of significant visual quality, that it lay close to the southern edge of Cambridge and that the general area contributed strongly to the setting of the city and the nearby villages of Stapleford and Great Shelford. Officers reported that the site was being used in a haphazard manner for the sale and storage of vehicles, including mobile homes, and a range of other materials such as an old Nissen hut. The appearance of the site had been described locally as an eyesore, harming the quality of its surroundings. In addition, the officers reported, there were highway safety concerns in relation to the sale of vehicles from the site, because customers had to gain access to the land directly from the A1307 road. The second report referred also to concerns for trespassers on the site, especially children, for whom there were a number of hazards presented by the materials stored there.[31]Reference was made to the extant enforcement notices, stating that vehicles were being stored in area B, and that a number of vehicles, including a number which were clearly unroadworthy, were present on area C, both for sale and, according to the first defendant's own response to a planning contravention notice dated 15 April 2013, by way of storage. Additional breaches of planning control not covered by the enforcement notices were identified: as regards area B, these included storage of a mobile home, motor vehicles including cars, lorries, vans, construction vehicles, trailers, fuel storage tanks, disused chest freezers, a Nissen hut and the construction of the east-west access road; as regards area C, the breaches included the sale of motor vehicles and the construction of the new road.[32]According to the first report, the key planning issues for consideration were the principle of such development in the green belt, the visual impact of the use of the site, highway safety and sustainability. As far as principle was concerned, the use of the land for the sale and open storage of vehicles was inappropriate in the green belt and should not be allowed for that reason alone. As for visual impact, there was clear and strong local opinion that (as mentioned above) the site, in its current state, was an eyesore. The area around the site was gently undulating open countryside of considerable visual quality that formed an important part of the setting of the city of Cambridge. It was also an important part of the open and rural character of the surroundings of the nearby villages. As for road safety, the highway authority was concerned about the creation and use of random and irregular accesses off the main arterial routes within the county, the A1307 road being one of them. There was heavy traffic on the road travelling at high speed. According to the report the use of the site as car sales area represented a significant intensification of use of the access well above that usual for agricultural use, and was detrimental to highway safety. On the issue of sustainability, the storage and sale of motor vehicles was not a use that needed to be located in the countryside, and was therefore contrary to planning policy.[33]The authors of the first report took the view that it was now necessary to take action against all the unauthorised activities on the site. They considered the option of serving a further enforcement notice against the current breaches of planning control across the whole site, but concluded that given the first defendant's history of breaching planning controls both on the Hill Trees site and at Riverside Stables, there was no realistic prospect of his compliance with further enforcement notices. That being so, to deal with the matter through the normal planning enforcement route would put further pressure on the limited resources of the council, and would probably result in significant further delays. Moreover, even if a further enforcement notice was served, it was possible that there would be further breaches, not necessarily falling within the scope of the enforcement notice which would result in yet further delay. The officers therefore considered it necessary to apply to the courts for an injunction to resolve matters in a timely and effective manner.[34]Entirely properly, the authors of the first report considered the personal circumstances of the first defendant, upon which (as mentioned above) in the event he addressed the committee. They observed that the grant of an injunction would put an end to the first defendant's business on the site, which would no doubt have an impact on his livelihood. That said, the scale of the current business of motor sales at the site appeared low, and the vehicles on the site were of low value, so that the profit from his activities could not be substantial. Therefore it was not apparent that his activities provided his sole income, and of course he was known to have assets elsewhere. They therefore concluded that the consequences of clearing the site and putting an end to the unauthorised use of the land would not have such a significant impact on the first defendant's well-being that such considerations outweighed the need to alleviate the harm which the report identified. The action contemplated was both proportionate and in the wider public interest. The second report mentioned that the first defendant might be residing at High Trees, and made the point that there was no reason to suppose that confining the residential use of the land to area A would have any material effect on his ability to use the land as a home.[35]It is worth setting out in full the conclusions of the first report: ‘Conventional planning enforcement has failed over a prolonged period of time to address what is a flagrant and prolonged defiance of planning control and nothing short of an injunction is considered likely now to be effective. Officers consider there is no alternative, as it is evident breaches will continue unless addressed. Officers also consider there is no hardship that would outweigh continued and persistent disobedience of planning control. Officers have considered all the circumstances and nonetheless resolved that it is necessary, expedient and proportionate to seek the injunction proposed in the public interest, including an injunction(i) on a permanent basis, and(ii) against breaches of planning control not subject to enforcement notices, and also apprehended future further breaches of planning control’.[36]The second report updated the committee, stating that activities on the land continued at an increased level:
‘This relatively recent and now sustained intensification of the use of the land in breach of planning control has heightened the need for the land to be brought under proper planning control’
. The authors recommended that area A should be included within the scope of the proposed injunction, because it was feared that if areas B and C, where the most harmful activity currently existed, were effectively ‘sterilised’ by order of the court, then prohibited activities would be likely to be relocated to area A, notwithstanding that its only lawful use was residential. They also recommended that the hardcore roadway laid by the first defendant should be included within the scope of the injunction.[37]The authors of the second report concluded that given the first defendant’s ‘flagrant and prolonged defiance of planning controls and procedures’, nothing short of an injunction would be effective to restrain the breaches of planning control. They remained of the view, having regard to all relevant considerations, including the first defendant’s personal circumstances, that it was necessary, expedient and proportionate in the public interest to seek an injunction, which would not impose an excessive burden on the first defendant: in any event, no hardship created by an injunction would outweigh the continued and persistent disobedience of planning control. The requirements of the injunction were not only proportionate but also requirements with which the first defendant could and ought reasonably to comply.[38]They therefore recommended to the committee that officers should be authorised to take all necessary steps to obtain an injunction under s187B, TCPA 1990, to seek to restrain current and apprehended future breaches of planning control on the land at High Trees. At its meeting on 7 May 2014, the planning committee resolved to give officers that authority.

FURTHER DEVELOPMENTS BEFORE HEARING

[39]It appears from a second witness statement of Mr Gary Duthie that D1 sought to challenge the resolution of the planning committee by way of judicial review. His grounds – as usual, he was acting in person – were that he had been found not guilty at Cambridge Crown Court of ‘enfringing planning enforsement notice’ (sic). He sought by way of remedy an order that SCDC should withdraw its application for an injunction and use normal planning law enforcement notices. Permission was refused by Mr Rhodri Price Lewis QC, sitting as a deputy High Court judge, on 11 September 2015, on the basis that (inter alia) it was unarguable and totally without merit. Mr Duthie expresses the view that that this latest unsuccessful claim was typical of the repeated fruitless challenges made by the first defendant in response to decisions of the council, and that the call on public resources in having repeatedly to deal with such challenges was substantially and disproportionately wasteful.[40]I was informed by Ms Sheikh QC at the hearing of SCDC’s application on 17 November 2015 that the first defendant had sought leave to appeal from Mr Price Lewis QC’s refusal of permission, and that (apparently on 16 November) Lindblom LJ had refused both permission to appeal and the stay of the injunction proceedings which the first defendant had sought.[41]It was against that background that I was greeted on the morning of the hearing with the news that the first defendant had applied for an adjournment on the grounds of his ill health. I was handed a fax from the first defendant to the court dated 13 November. It attached a number of documents, including letters from doctors, and it explained that his doctor had said he could not attend court because of his large kidney stones. He said that his life had been very restricted in recent years by his kidney stones, and that he had to avoid severe stress, lest his kidneys should ‘tighten up’, causing bleeding on urination, which could also cause infectious blood poisoning. He said that his kidney stones had got a lot worse due to pending court action. There were also lengthy references to caring for his blind mother, who died in 2008. To take it shortly, he referred to the complexity of the case, he having used the High Trees site for 13 years; he referred to his acquittal at Cambridge Crown Court in 2007; he contended that he had fully complied with enforcement notices on the site; and he urged on the court the need for him to be present in court to argue his case in person, as he had done in the past. He assured the court that he would keep it up to date with his progress.[42]The most material letters were from his GP, Dr Alastair Brown, who said on 22 September 2015 that the first defendant (he gave the name Paul Sanderson, but this appears to be another name used by the first defendant) had huge kidney stones which were causing bleeding into his urine, and that his clinical situation was slightly precarious in that he was then at risk of developing obstruction or getting blood poisoning. He concluded that it was preferable if his court hearing (date unspecified) could be postponed. There was a second letter from Dr Brown, dated 11 November 2015, which informed those whom it concerned that Mr Sanderson did not have an appointment to discuss removal of his kidney stones until 5December, and that it was likely to take a further month or two from that date for the hospital to schedule a procedure. The doctor concluded with these words:
‘For some reason, his experience is that stress precipitates bleeding and so he really can’t entertain attending court until well into the new year’
. There was also a letter from an urologist dated 12 November 2014, which stated that Mr Sanderson was ‘relatively asymptomatic’ at the moment and that he should have a review in 3 months’ time.[43]The first defendant, who is a very experienced and determined litigant in person, did not appear in court to make his application. He appeared to assume that, having sent his fax, he did not need to attend, and would be granted the adjournment that he sought. However, I dismissed the application, given that his claims to be unable to attend court for the hearing were not supported by the medical evidence. No doctor had expressed the view that he could not or was unfit to attend this hearing, and his urologist had stated (albeit a year before) that he was relatively asymptomatic. I was not prepared to take a course which would have entailed the waste of court time, and the throwing away of further public money, on the basis of such inadequate evidence.[44]After I had dismissed the application I was also shown a further fax to the court from the first defendant, dated 14 November 2015, together with a similar fax which had been sent to a Mr Rose of SCDC’s solicitors, Sharpe Pritchard. The fax stated(1) that he had not yet been given any decision regarding his appeal (he was plainly referring to his application for leave to appeal from the refusal of permission by Mr Price Lewis QC: in fact, that application was refused by Lindblom LJ of 16 November), and(2) that he had made an application for a ‘lawful development certificate’ for most of the site, which SCDC received on 14 October 2015. That, he said in his fax to Mr Rose, ‘must be another reason for ajurnment (sic) of injunction application’. I was told by Ms Sheikh QC, if I understood her correctly, that the application was ineffective, but whether it had been effective or not, in the light of the history set out above I would not have regarded it as any ground for adjournment of the hearing of SCDC’s application.[45]The application was issued on 30 July 2015. The witness statements of Mr Pierce and Mr Swain, and Mr Duthie’s first statement, had already been signed. (Mr Duthie’s second statement dated 18 September 2015 dealt only with the first defendant’s attempt at judicial review of the committee’s resolution of 7 May 2014 to seek an injunction). Nonetheless, the first defendant chose not to put in any evidence in answer to that served by the claimant, which is therefore wholly uncontradicted.

JURISDICTION

[46]Section 187B, TCPA 1990 is in the following terms, so far as material:
“Injunctions restraining breaches of planning control (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 the other powers under this Part. (2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach.”
[47]So far as is presently material, the order sought is in the following terms (defining ‘the Land’ as the land at Hill Trees, Babraham Road, Stapleford, Cambridgeshire, shown red on the plan attached to the draft) namely that:(1) the defendant be forbidden (whether by himself or by instructing or encouraging any other person) from: (i) causing or permitting any development, as defined within s55 of the Town and Country Planning Act 1990, to occur on the Land in breach of planning control; (ii) in particular, causing or permitting any material change of use of the Land or any part of it without the prior grant of express planning permission; (iii) using or causing or permitting the use of the Land or any part of it for purposes other than residential or agricultural use without express planning permission for such use having been granted; (iv) using or causing or permitting the use of the Land or any part of it for any trade, business, commercial, industrial, storage or sales use (including any use in connection with motor vehicles, their storage, sale or repair) or in any other way facilitating the use of the Land or any part of it for any such use without express planning permission for such a use having been granted; (v) keeping, stationing or storing on the Land or any part of it any vehicles, vehicle parts, plant, machinery, equipment, materials, containers, mobile homes, caravans or trailers other than as part of the lawful residential or agricultural use of the Land.(2) the defendant: (i) by no later than 56 days from the date of the order ceases the use of the land for any trade, business, commercial, industrial, storage or sales use (including any use in connection with motor vehicles, their storage, sale or repair); (ii) removes from the land, by no later than 56 days from the date of this order, all vehicles, vehicle parts, plant, machinery, equipment, materials, containers, mobile homes, caravans or trailers connected with uses described in paragraph (2) (i) above; (iii) removes from the land, by no later than 56 days from the date of this order, the material forming the roadway on the land, shown hatched on the plan attached.(3) there be liberty to the parties to apply to vary or discharge this order upon giving seven clear days’ written notice to the other party.[48]The principles for the exercise of the jurisdiction under s187B were considered and stated by the House of Lords in South Buckinghamshire District Council v Porter [2003] UKHL 26; [2003] 2 AC 558, affirming the decision of the Court of Appeal in the same case ([2001] EWCA Civ 1549; [2002] 1 WLR 1359). Those principles may be summarised in the following terms:(1) Section 187B confers on the court an original and discretionary (not a supervisory) jurisdiction, to be exercised with due regard for the purpose for which it is conferred, namely to restrain actual or threatened breaches of planning control.(2) It is inherent in the injunctive remedy that its grant depends on the court’s judgment of all the circumstances of the case.(3) The court is not required, or even entitled, to reach its own independent view of the planning merits of the case. Any actual or threatened breach of planning control is therefore a given when the court comes to exercise its discretion. But nor is the court obliged to grant an injunction because a local authority considers it necessary or expedient for a breach of planning control to be restrained by injunction.(4) The power under s187B must be exercised with due regard to the purpose for which it was conferred, namely to restrain actual and threatened breaches of planning control. Where it appears that a breach will continue unless effectively restrained by the law, and that nothing short of an injunction will provide effective restraint, that will point strongly towards the grant of an injunction, as will a history of unsuccessful enforcement and persistent non-compliance, and evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay.(5) The court should not grant injunctive relief without having considered potential hardship for the defendant if the order is made. If it appears that the local authority has taken account of the defendant’s personal circumstances and any hardship that an injunction may cause, that will ordinarily weigh in favour of granting relief, since the court must accord respect to the balance which the local planning authority, as the democratically elected and accountable body principally responsible for planning control in its area, has struck between public and private interests. But the order must be one with which the defendant can and reasonably ought to comply, given the potential consequences of non-compliance with an order of the court.(6) It is ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances. The need for proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought, but also that it does not impose an excessive burden on the individual whose private interests are at stake.

DISCUSSION

[49]I can now take matters shortly. The uncontested evidence shows a history of determined defiance by the first defendant of planning controls. For many years, he has used most of the High Trees site for commercial purposes in flagrant breach of permitted use. He has challenged to the limit every attempt which SCDC has made to confine his use of the High Trees site to the lawful uses, namely residential (area A) and agricultural (areas B and C), and the result is that the site continues to constitute an eyesore in the middle of a sensitive area of Cambridgeshire green belt. SCDC has spent what must have been a very substantial amount of public money in its attempts to enforce compliance with planning controls, without the slightest sign that the first defendant has any intention of changing his ways. This is a classic case, in my judgment, of playing the system, by which the first defendant has exploited every possible chance to hold up or frustrate the attempts of the democratically elected local authority to restore the site to its proper use. It seems to me wholly consistent with that behaviour that rather than engage with this application by (at the very least) putting in evidence, the first defendant preferred to attempt to frustrate the application by applying for judicial review of the planning committee’s resolution, and then appealing when his application failed. It was not entirely surprising, against the history of this case, that he persisted until the last minute in his attempts to put the hearing off.[50]Very properly, the planning officers considered the possibility of hardship to the first defendant if an injunction was granted, and the planning committee considered his representations at its hearing on 2 October 2013. This is not a case where the potential hardship entails loss of a place of residence (as it was in Porter, where all of the three cases considered by the House of Lords involved gypsies whom local authorities sought to prevent from living on land where planning permission for mobile homes and caravans had been refused). The first defendant apparently has use of the house at High Trees, where he will be able to continue to live if he wishes, and in addition he owns a house in Perne Road. He also owns Riverside Stables in Little Abington. On the face of it, and he has not sought to suggest otherwise, he is a man of means. It appears that the only hardship which he will face is being prevented from conducting a small business of buying and selling elderly motor vehicles, and from storing the miscellaneous decaying items described in the evidence, on land where he has never had any right to do anything of the kind. Against the strong public interest in maintaining the proper use of the site in a sensitive area of green belt land, and in removing a potential hazard to fast-moving traffic, that hardship is in my judgment a matter of relative insignificance. It is possible (I speculate, because he has not put in evidence) that the first defendant might have difficulty in clearing the site and removing the roadway within the 56 day period allowed. For that reason, the order includes a liberty to apply, but the first defendant should understand that compelling written evidence, served with proper notice to SCDC, would be required before the court would contemplate granting an extension of time.[51]In my judgment, the evidence clearly shows that nothing short of an injunction will bring effectively restrain the first defendant’s continued defiance of planning controls at High Trees. The order sought is, in all the circumstances, a just one, and it is proportionate to the mischief for which the first defendant has been responsible and to the hardship which he may be caused. This is exactly the kind of case for which the power under s187B was designed. Crown copyright©