NORTH NORTHAMPTONSHIRE COUNCIL v James Jason MONGAN [2022] EWHC 536 (QB)
[2022] EWHC 536 (QB)Case No QB-2022-000449
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11 March 2022
Before
ANTONY DUNNE(Sitting as a Deputy High Court Judge)
Between
NORTH NORTHAMPTONSHIRE COUNCILClaimant(1) James Jason MONGANDefendants(2) Edward Paul MONGAN(3) Christopher Joseph MONGANOliver Lawrence (instructed by North Northamptonshire County Council) for Claimant for The Defendants did not attend and were not representedHearing Hearing dates: 25 th February 2022Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................ANTONY DUNNE
Introduction
[1]This is the return date hearing of the Claimant's application for an injunction, pursuant to section 187B of the Town and Country Planning Act 1990 ("the TCPA 1990"). The Defendants are the Registered Proprietors of Registered Title NN 212797, and have been since 13th April 2015. This land is described as PLOT 10, Greenfields, Braybrooke Road, Braybrooke, MARKET HARBOROUGH (“Plot 10”). This land is designated as agricultural land.[2]On 11th February 2022, following a without notice application made on 10th February 2022, Cutts J issued an interlocutory injunction under section 187B of the TCPA 1990 in the following terms: The Land referred to in this order is the Land at plots 10 and 11 at Greenfields, Braybrooke Road, Braybrooke as delineated in red on the attached plan.”[3]The application returns to the Court for reconsideration of the order and whether further orders are appropriate (including a mandatory order requiring full compliance with the enforcement notice). The Claimant has provided the Court with a draft order. The draft order contains paragraphs 1 and 2 from the 11 February order, as set out above, and includes two further requirements:
Enforcement action
[4]The enforcement history in relation to Plots 10 and 11, Greenfields, is set out in the witness statement of Lucinda Lee, a senior planning enforcement officer employed by North Northamptonshire Council.[5]The Claimant became aware of the breach of planning control at Plot 10 on 18th October 2019 when Lucinda Lee inspected the site and reported that “the site showed without planning permission a clear import and deposit of waste materials and hardstanding and laying down of various hardstanding composites to form a hardstanding base”. Ms Lee concluded that “a material change of use has occurred and without planning permission to the carrying out of engineering works to the land”.[6]On 30th October 2019 the Claimant gave notice to the “landowners/occupiers/land users” of Plot 10 of the breach of planning control by the deposit of mixed hardcore material and required them to stop the breach of planning control with immediate effect and to remove the material from the land within 14 days. This letter was attached upon Plot 10 and at the front entry gate.[7]On 25th November 2019 the Claimant wrote to the Defendants, the registered proprietors of Plot 10, informing them of the breach of planning control, enclosing the 30th October 2019 notice, and informing the Defendants that, as the landowners, they were responsible for rectifying the breach of planning control. The Defendants were informed that they had 7 days to respond to the letter and that an enforcement notice would be served on the land. The letter was sent to 125 Everton Drive, Stanmore, HA7 1EB. This is the address of the Defendants recorded in the Land Registry proprietorship register for Plot 10.[8]On 28th November 2019 a site visit by Ms. Lee revealed the works on Plot 10 were continuing and that the works had now expanded over Plot 11. The Defendants are not the registered proprietors of Plot 11.[9]On the 13th December 2019 an enforcement notice was issued alleging a breach of planning control on Plot 10. The reasons given for the notice were, in essence: the carrying out of engineering works on the land to facilitate a change of use of the land, which did not benefit from planning permission; and that the breach of planning control provided an adverse detrimental impact upon the land because of its incongruity with the natural landscape. The notice gave clear instructions to:(a) stop the unauthorised use within 1 month of the notice;(b) remove the hardstanding material from the land within 2 months of the notice; and(c) to restore the land to its previous condition by levelling and reseeding the land, within 2 months of the completion of instruction (b). The effective date on the notice was 16th January 2020. The notice was served: on the land; on the Defendant’s address as shown in the proprietorship register for Plot 10; in the local paper; and on the electronic enforcement register. No appeal against the notice was lodged.[10]On 30th September 2020 Ms Lee again visited Plots 10 and 11. On this occasion a man who gave his name as “George” was driving a digger on the site and was using it to pummel hardstanding material into the ground. “George” said that he was doing the work as a favour for a man called George Merrigan and gave no further details to Ms Lee. On the same day as Ms Lee’s visit to Plot 10, a man telephoned the council offices for Ms. Lee and gave his name as James Mongan.[11]On 2nd October 2020 Ms Lee telephoned the number left on the 30th September and spoke to James Mongan, the First Defendant. James Mongan said that he was only the part owner of Plot 10, that he owned part A and his brothers owned parts B and C. He said that there were no works on his part of Plot 10 and that he “never knew what was going on.”. Ms. Lee informed James Mongan that if the works on Plot 10 continued that would constitute a criminal offence.[12]Ms Lee again spoke to James Mongan on the telephone on 6th October 2020. James Mongan first asked if he could make a planning application. Ms Lee told him that an application for residential use could not be made as a previous application had been refused. James Mongan then said that the land was not his and that he knew nothing of the works. Ms. Lee informed James Mongan that there was an enforcement notice in relation to the land. Ms Lee’s reference in her conversation with James Mongan to “a previous application” relates to an appeal by James, Edward and Christopher Mongan in 2015 to permit the residential use of Plot 10. This appeal was dismissed by a planning inspector on 22nd March 2017. In this telephone call Ms Lee arranged a face to face meeting with James Mongan for the 8th October 2020. James Mongan did not attend this meeting.[13]On 16th December 2020 Ms Lee made another site visit to Plot 10. There was no compliance with the enforcement notice. On the same day a letter addressed to the Defendants warning them of the risk of prosecution under section 179 of the TCPA 1990 was left at Plot 10.[14]Aerial drone footage was taken of Plot 10 in February 2021, on 14th December 2021 and 10th January 2022. This footage shows that Plot 10 was still in non-compliance with the enforcement notice and that a container had now been placed on Plot 10. In addition, the footage from February 2021 showed that the works had fully extended over Plot 11 and that they had been carried out by the same equipment.
History of these proceedings
[15]On 10th February 2022, the Claimants applied for an injunction against the Defendants under the provisions of section 187B. The application was made without notice. As set out above the interim injunction was granted on 11th February 2022, with a review date of 25th February 2022.
Service and proceeding in the Defendants' absence
[22]In light of the Defendants longstanding failure to respond to the Enforcement notice and having regard to the overriding objective and the need to do justice to both sides, I did not consider that it was unfair on the Defendant to proceed with the hearing on 25th February.
Relevant law
[23]Section 187B of the TCPA 1990 provides:[24]Guidance on the approach the Court should take when considering an application under section 187B was provided by the House of Lords in the leading case of South Bucks DC v Porter [2003] UKHL 26. In Davis v Tonbridge & Malling Borough Council [2004] EWCA 194 the Court of Appeal summarised the effect of the speeches in the House of Lords in the Porter case as follows:[25]In addition, Lord Bingham, giving the leading speech in the House of Lords in the Porter case, said:[26]Finally, as this is an application for an interim injunction, I must also consider the tests laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396.
Discussion and Conclusions
[27]I conclude that the terms of the interim injunction order made on 11th February 2022 now set out in paragraph 1 of the draft order should continue and that there should also be a mandatory injunction order in the terms set out at paragraph 3 of the draft order. My reasons are as follows:[28]For all of the above reasons, it is just and proportionate to grant an injunction in the prohibitory and mandatory terms set out in paragraphs 1 and 3 of the draft order.[29]I now consider whether it would be appropriate to order that the Defendants not sell or lease the Land without the consent of the Claimant’s solicitor until they have fully obeyed this order, as set out in paragraph 4 of the draft order. Mr Lawrence submitted that this requirement be included in the order as it would make it harder for the Defendants to escape the consequences of their breach of planning control and would make it harder for the Claimant to secure compliance with the order. The Defendants’ repeated failure to respond to the Claimant’s attempts to secure compliance with planning control also provides evidence that the Defendants might take further steps to avoid compliance with the order, including by disposing of the land. I therefore conclude:(a) that the requirement set out at paragraph 4 of the draft order will assist in enforcing compliance with the mandatory terms of the injunction by preventing the Defendants from disposing of the land; and(b) that the requirement is just and proportionate and that the balance of convenience favours the inclusion of such a requirement.
Further Orders
[30]There was discussion at the end of the hearing about the method of service for this order. The Claimant shall effect service of the order and this judgment as follows:[31]I have summarily assessed the Claimant’s costs and order the Defendants pay to the Claimant the sum of £3,982.00.[32]I heard submissions from Mr Lawrence as to whether it would be appropriate to amend the order to provide the Defendants with liberty to apply to vary or discharge the Order the Court makes. In light of the Defendants’ failures to respond to enforcement action, there will be no order allowing the Defendants liberty to apply. Of course, as this hearing proceeded in their absence, the Defendants may be permitted to make an application under CPR 39.3 to set the order aside, if they can satisfy its criteria.