Judgments - Wrexham County Borough Council (Appellants) v. Berry (Respondent) South Bucks District Council (Appellants) v. Porter and another (FC) (Respondents) Chichester District Council (Appellants) v. Searle and others (Respondents) (Consolidated Appeals

(back to preceding text)

    18. In the Court of Appeal separate teams of counsel represented the appellant Gypsies and the respondent local authorities and the submissions made on each side were not to identical effect. Simon Brown LJ summarised the Gypsies' argument in paragraphs 29-34 of his judgment. In broad summary the argument, in all essentials the argument repeated by Mr Charles George QC in the House, was to the following effect. Section 187B gives the judge a discretion, to be exercised as an original jurisdiction not a review power. Since injunctions are likely to prove the most effective way of remedying breaches of planning control, because attended by the most severe sanctions, including imprisonment, they should be granted only where plainly appropriate and where the court is willing to contemplate the imposition of severe penalties. If the court is unwilling to commit it should be unwilling to enjoin. In cases such as Mole Valley District Council v Smith (1992) 90 LGR 557 and Hambleton District Council v Bird [1995] 3 PLR 8 the court had taken too narrow a view of its discretion. The court (paragraph 31)

    "would only be prepared to grant injunctive relief in cases which the court itself regarded as clear, cases where it was quite satisfied first that the planning authority (whether the district council or the Secretary of State/inspector on appeal) had properly reached a final conclusion that the gipsies' continuing occupation of the site could no longer be tolerated in the public interest, and secondly that it was appropriate to enforce their removal by injunction even though, in a case where no alternative sites were available, that would drive the gipsies either onto the roads, into homelessness accommodation (see Chapman's case 33 EHRR 399, 416, para 54) or, on non-compliance with the injunction, into prison."

Whatever the position before the Human Rights Act 1998, the court must now address the issues arising under article 8(2) of the European Convention on Human Rights and reach its own decision on whether the Gypsies' removal from the site is proportionate to the public interest in preserving the environment. This did not mean that the court would pay no heed to the decisions of local planning authorities: issues as to whether or not planning permission should be granted are exclusively a matter for them, and the planning history of the site, including any recent decisions, will be highly relevant. Respect should be accorded to the decisions of a democratically accountable body. But it is still for the court to reach its own independent conclusion on the proportionality of the relief sought to the object to be attained.

    19. In the Court of Appeal Mr Timothy Straker QC represented the three local authorities now before the House and Simon Brown LJ summarised his essential argument as being (paragraph 35)

    "that the judge exercising his section 187B jurisdiction is more or less bound to grant an injunction unless the local planning authority's application can be shown to be flawed on Wednesbury grounds."

The court's function is supervisory. The power to grant an injunction should be exercised in support of planning control. The Mole Valley and Hambleton cases were rightly decided. Not until the stage of committal for breach of an injunction is the court entitled to reach an independent view on proportionality. At the injunction stage the court should consider only whether the Gypsies should leave the site, not whether they should suffer serious penalty if they fail to do so. The court's role is unaffected by the Human Rights Act 1998. Reliance was placed on the decision of the House in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23.

    20. The Court of Appeal's ruling on the approach to section 187B was expressed in five paragraphs of Simon Brown LJ's judgment, which I must quote in extenso:

    "The approach to section 187B

    38.  I would unhesitatingly reject the more extreme submissions made on either side. It seems to me perfectly clear that the judge on a section 187B application is not required, nor even entitled, to reach his own independent view of the planning merits of the case. These he is required to take as decided within the planning process, the actual or anticipated breach of planning control being a given when he comes to exercise his discretion. But it seems to me no less plain that the judge should not grant injunctive relief unless he would be prepared if necessary to contemplate committing the defendant to prison for breach of the order, and that he would not be of this mind unless he had considered for himself all questions of hardship for the defendant and his family if required to move, necessarily including, therefore, the availability of suitable alternative sites. I cannot accept that the consideration of those matters is, as Burton J suggested was the case in the pre-1998 Act era, 'entirely foreclosed' at the injunction stage. Questions of the family's health and education will inevitably be of relevance. But so too, of course, will countervailing considerations such as the need to enforce planning control in the general interest and, importantly therefore, the planning history of the site. The degree and flagrancy of the postulated breach of planning control may well prove critical. If conventional enforcement measures have failed over a prolonged period of time to remedy the breach, then the court would obviously be the readier to use its own, more coercive powers. Conversely, however, the court might well be reluctant to use its powers in a case where enforcement action had never been taken. On the other hand, there might be some urgency in the situation sufficient to justify the pre-emptive avoidance of an anticipated breach of planning control. Considerations of health and safety might arise. Preventing a gipsy moving onto the site might, indeed, involve him in less hardship than moving him out after a long period of occupation. Previous planning decisions will always be relevant; how relevant, however, will inevitably depend on a variety of matters, including not least how recent they are, the extent to which considerations of hardship and availability of alternative sites were taken into account, the strength of the conclusions reached on land use and environmental issues, and whether the defendant had and properly took the opportunity to make his case for at least a temporary personal planning permission.

    39  Relevant too will be the local authority's decision under section 187B(1) to seek injunctive relief. They, after all, are the democratically elected and accountable body principally responsible for planning control in their area. Again, however, the relevance and weight of their decision will depend above all on the extent to which they can be shown to have had regard to all the material considerations and to have properly posed and approached the article 8(2) questions as to necessity and proportionality.

    40  Whilst it is not for the court to question the correctness of the existing planning status of the land, the court in deciding whether or not to grant an injunction (and, if so, whether and for how long to suspend it) is bound to come to some broad view as to the degree of environmental damage resulting from the breach and the urgency or otherwise of bringing it to an end. In this regard the court need not shut its mind to the possibility of the planning authority itself coming to reach a different planning judgment in the case.

    41  True it is, as Mr McCracken points out, that, once the planning decision is taken as final, the legitimate aim of preserving the environment is only achievable by removing the gipsies from site. That is not to say, however, that the achievement of that aim must always be accepted by the court to outweigh whatever countervailing rights the gipsies may have, still less that the court is bound to grant injunctive (least of all immediate injunctive) relief. Rather I prefer the approach suggested by the 1991 Circular: the court's discretion is absolute and injunctive relief is unlikely unless properly thought to be 'commensurate' - in today's language, proportionate. The approach in the Hambleton case [1995] 3 PLR 8 seems to me difficult to reconcile with that circular. However, whatever view one takes of the correctness of the Hambleton approach in the period prior to the coming into force of the Human Rights Act 1998, to my mind it cannot be thought consistent with the court's duty under section 6(1) to act compatibly with convention rights. Proportionality requires not only that the injunction be appropriate and necessary for the attainment of the public interest objective sought - here the safeguarding of the environment - but also that it does not impose an excessive burden on the individual whose private interests - here the gipsy's private life and home and the retention of his ethnic identity - are at stake.

    42  I do not pretend that it will always be easy in any particular case to strike the necessary balance between these competing interests, interests of so different a character that weighing one against the other must inevitably be problematic. This, however, is the task to be undertaken by the court and, provided it is undertaken in a structured and articulated way, the appropriate conclusion should emerge."

Mole Valley District Council v Smith

    21. Before considering the merits of the competing arguments and the correctness of the guidance given by the Court of Appeal, account should be taken of earlier Court of Appeal authority. Mole Valley District Council v Smith (1992) 90 LGR 557 was one of two appeals heard and reported together. The other was Reigate and Banstead Borough Council v Brown, which involved different Gypsies and a different (although neighbouring) local authority.

    22. In the Mole Valley case the Gypsies appealed against the grant of an injunction by Hoffmann J at first instance under section 222 of the 1972 Act. The facts disclosed a history of unsuccessful enforcement by the local planning authority and non-compliance by the Gypsies over several years (pages 565-566). The principal issue before the Court of Appeal was whether the Gypsies could successfully resist eviction by the local planning authority on the ground that a different body, the county council, had fallen down on its statutory duty to provide enough pitches to accommodate the Gypsies seeking them (pages 559-560). Lord Donaldson of Lymington MR held (page 568) that they could not, a conclusion shared by Balcombe LJ (page 569) and Stuart-Smith LJ (page 570). The Master of the Rolls approved a passage in the judgment of Hoffmann J (page 567) where he had said:

    "There can be no doubt that requiring [the defendants] to leave the site would cause considerable hardship. This court, however, is not entrusted with a general jurisdiction to solve social problems. The striking of a balance between the requirements of planning policy and the needs of these defendants is a matter which, in my view, has been entrusted to other authorities."

The Court of Appeal did not approach this case as one turning on hardship to the Gypsies, which was not relied on as a ground of appeal. No reference was made to age, infirmity, ill-health or the reasonable needs of children. The Court of Appeal furthermore understood that a number of additional pitches would become available in the reasonably near future (page 563), declined to shorten the period allowed by the judge for complying with the injunction (pages 568-569) and envisaged that in deciding whether to enforce the injunction the local planning authority would have regard to the availability of alternative authorised pitches "very shortly thereafter" (page 569).

    23. In the Reigate and Banstead case the principal issue was the same (pages 559-560) but the evidence of unsuccessful enforcement and non-compliance was even stronger (pages 563-565). There was little prospect of additional pitches become available in this area in the near future (page 563). In this case the Gypsies did rely on what they claimed would be exceptional hardship if interlocutory relief were granted pending trial (page 559), but no allusion was made to this ground of appeal in the judgments and no reference was made to the personal circumstances of the Gypsies. The court granted the same period of suspension (pages 568-569), and made the same observation about enforcement (page 569), envisaging, it would seem, that these Gypsies would take advantage of the additional pitches expected to become available nearby.

    24. The ratio of both decisions was that the problems confronting the Gypsies, the local planning authorities and the county council (page 566)

    "are social in nature and fall to be solved in the context of town and country planning policies. These are matters ultimately for the Secretary of State, subject only to the court's supervisory jurisdiction by means of judicial review which is not invoked in these proceedings."

Hambleton District Council v Bird

    25. In this case (reported at [1995] 3 PLR 8) the local authority appealed against the refusal of the trial judge to grant an injunction under section 187B to restrain the respondent Gypsies, a large family, from continuing to use land, which they owned, for the purpose of siting residential caravans. The Gypsies had used the site, in breach of planning control, for a number of years. Applications for planning permission had been refused and an enforcement notice had proved ineffective, as had prosecutions for non-compliance (pages 9-11). In declining to grant an injunction the judge had referred to the financial burden on the local authority of housing the Gypsies, money which the judge plainly thought could be better spent (page 12), and he considered it wrong to grant an injunction, which would cause "gross disruption to no great public benefit" when the Gypsies were contemplating a further planning application which might arguably succeed (page 12).

    26. Giving the leading judgment in the Court of Appeal, Pill LJ made detailed reference to the Mole Valley case, and also to a decision of Scott J in Waverley Borough Council v Hilden [1988] 1 WLR 246, 264. He criticised the trial judge for taking it upon himself to assess the benefits and disbenefits to the public as a whole and to exercise the policy function of planning and housing authorities (page 15). He also held (page 15) that the possibility of a future grant of planning permission was not a legitimate reason for refusing an injunction to restrain a breach of the law. These errors were held to vitiate the judge's exercise of discretion, and exercising a fresh discretion Pill LJ thought it clear that an injunction should be granted, a conclusion with which Sir Ralph Gibson (page 16) and Balcombe LJ (page 18) agreed. In the course of his judgment Pill LJ made no reference to hardship. He accepted that at the date of trial no alternative site was available (page 12), although Sir Ralph Gibson thought it clear that such a site would before long become available, and he discounted the Gypsies' objections to it (page 17).

Section 187B

    27. The jurisdiction of the court under section 187B is an original, not a supervisory, jurisdiction. The supervisory jurisdiction of the court is invoked when a party asks it to review an exercise of public power. A local planning authority seeking an injunction to restrain an actual or apprehended breach of planning control does nothing of the kind. Like other applicants for injunctive relief it asks the court to exercise its power to grant such relief. It is of course open to the defendant, in resisting the grant of an injunction, to seek to impugn the local authority's decision to apply for an injunction on any of the conventional grounds which may be relied on to found an application for judicial review. As Carnwath J observed in R v Basildon District Council, Ex p Clarke [1996] JPL 866, 869:

    "If something had gone seriously wrong with the procedure, whether in the initiation of the injunction proceedings or in any other way, it was difficult to see why the County Court judge could not properly take it into account in the exercise of his discretion to grant or refuse the injunction."

But a defendant seeking to resist the grant of an injunction is not restricted to reliance on grounds which would found an application for judicial review.

    28. The court's power to grant an injunction under section 187B is a discretionary power. The permissive "may" in subsection (2) applies not only to the terms of any injunction the court may grant but also to the decision whether it should grant any injunction. It is indeed inherent in the concept of an injunction in English law that it is a remedy that the court may but need not grant, depending on its judgment of all the circumstances. Underpinning the court's jurisdiction to grant an injunction is section 37(1) of the Supreme Court Act 1981, conferring power to do so "in all cases in which it appears to the court to be just and convenient to do so". Thus the court is not obliged to grant an injunction because a local authority considers it necessary or expedient for any actual or apprehended breach of planning control to be restrained by injunction and so makes application to the court. No assistance is gained from R v Wicks [1998] AC 92, relied on by the local authorities, where it was held to be too late to challenge an enforcement notice in criminal proceedings, a situation quite unlike the present.

    29. The court's discretion to grant or withhold relief is not however unfettered (and by quoting the word "absolute" from the 1991 circular in paragraph 41 of his judgment Simon Brown LJ cannot have intended to suggest that it was). The discretion of the court under section 187B, like every other judicial discretion, must be exercised judicially. That means, in this context, that the power must be exercised with due regard to the purpose for which the power was conferred: to restrain actual and threatened breaches of planning control. The power exists above all to permit abuses to be curbed and urgent solutions provided where these are called for. Since the facts of different cases are infinitely various, no single test can be prescribed to distinguish cases in which the court's discretion should be exercised in favour of granting an injunction from those in which it should not. Where it appears that a breach or apprehended breach will continue or occur unless and until effectively restrained by the law and that nothing short of an injunction will provide effective restraint (City of London Corporation v Bovis Construction Ltd [1992] 3 All ER 697, 714), that will point strongly towards the grant of an injunction. So will a history of unsuccessful enforcement and persistent non-compliance, as will evidence that the defendant has played the system by wilfully exploiting every opportunity for prevarication and delay, although section 187B(1) makes plain that a local planning authority, in applying for an injunction, need not have exercised nor propose to exercise any of its other enforcement powers under Part VII of the Act. In cases such as these the task of the court may be relatively straightforward. But in all cases the court must decide whether in all the circumstances it is just to grant the relief sought against the particular defendant.

    30. As shown above the 1990 Act, like its predecessors, allocates the control of development of land to democratically-accountable bodies, local planning authorities and the Secretary of State. Issues of planning policy and judgment are within their exclusive purview. As Lord Scarman pointed out in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132, 141, "Parliament has provided a comprehensive code of planning control". In R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389, [2001] UKHL 23, paragraphs 48, 60, 75, 129, 132, 139-140, 159 the limited role of the court in the planning field is made very clear. An application by a local planning authority under section 187B is not an invitation to the court to exercise functions allocated elsewhere. Thus it could never be appropriate for the court to hold that planning permission should not have been refused or that an appeal against an enforcement notice should have succeeded or (as in Hambleton [1995] 3 PLR 8) that a local authority should have had different spending priorities. But the court is not precluded from entertaining issues not related to planning policy or judgment, such as the visibility of a development from a given position or the width of a road. Nor need the court refuse to consider (pace Hambleton) the possibility that a pending or prospective application for planning permission may succeed, since there may be material to suggest that a party previously unsuccessful may yet succeed, as the cases of Mr Berry and Mrs Porter show. But all will depend on the particular facts, and the court must always, of course, act on evidence.

    31. In Westminster City Council v Great Portland Estates plc [1985] AC 661, 670 Lord Scarman drew attention to the relevance to planning decisions, on occasion, of personal considerations:

    "Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor. The human factor is always present, of course, indirectly as the background to the consideration of the character of land use. It can, however, and sometimes should, be given direct effect as an exceptional or special circumstance. But such circumstances, when they arise, fall to be considered not as a general rule but as exceptions to a general rule to be met in special cases. If a planning authority is to give effect to them, a specific case has to be made and the planning authority must give reasons for accepting it. It follows that, though the existence of such cases may be mentioned in a plan, this will only be necessary where it is prudent to emphasise that, notwithstanding the general policy, exceptions cannot be wholly excluded from consideration in the administration of planning control."

Ouseley J made the same point more recently in Basildon District Council v The Secretary of State for the Environment, Transport and the Regions [2001] JPL 1184, an appeal under section 288 of the 1990 Act, when he said in paragraph 33 of his judgment:

    "From that analysis I conclude, first, that quite apart from any considerations of common humanity, the needs of these particular gypsy families were a material consideration because they had a need for this development in this location. Those personal circumstances entitled the Secretary of State to have regard to them as relevant to the decision he had to make in the public interest about the use of the land for the stationing of residential caravans. Their particular need for stability in the interest of the education of the younger children can also reasonably be seen as an aspect of the wider land use interest in the provision of gypsy sites, which interest includes the need for stable educational opportunities. There is also a public interest in the planning system providing stable educational opportunities for gypsy families, including these gypsy families."

Thus the Secretary of State was entitled to have regard to the personal circumstances of the Gypsies, as he did in the cases of Mr Berry and Mrs Porter. When application is made to the court under section 187B, the evidence will usually make clear whether, and to what extent, the local planning authority has taken account of the personal circumstances of the defendant and any hardship an injunction may cause. If it appears that these aspects have been neglected and on examination they weigh against the grant of relief, the court will be readier to refuse it. If it appears that the local planning authority has fully considered them and nonetheless resolved that it is necessary or expedient to seek relief, this will ordinarily weigh heavily in favour of granting relief, since the court must accord respect to the balance which the local planning authority has struck between public and private interests. It is, however, ultimately for the court to decide whether the remedy sought is just and proportionate in all the circumstances, and there is force in the observation attributed to Vaclav Havel, no doubt informed by the dire experience of central Europe: "The Gypsies are a litmus test not of democracy but of civil society" (quoted by McCracken and Jones, counsel for Hertsmere in the fourth appeal, "Article 8 ECHR, Gypsies, and Some Remaining Problems after South Buckinghamshire" [2003] JPL 382, 396, f.n. 99).

    32. When granting an injunction the court does not contemplate that it will be disobeyed: In re Liddell's Settlement Trusts [1936] Ch 365, 373-374; Castanho v Brown & Root (UK) Ltd [1981] AC 557, 574. Apprehension that a party may disobey an order should not deter the court from making an order otherwise appropriate: there is not one law for the law-abiding and another for the lawless and truculent. When making an order, the court should ordinarily be willing to enforce it if necessary. The rule of law is not well served if orders are made and disobeyed with impunity. These propositions however rest on the assumption that the order made by the court is just in all the circumstances and one with which the defendant can and reasonably ought to comply, an assumption which ordinarily applies both when the order is made and when the time for enforcement arises. Since a severe financial penalty may be imposed for failure to comply with an enforcement notice, the main additional sanction provided by the grant of an injunction is that of imprisonment. The court should ordinarily be slow to make an order which it would not at that time be willing, if need be, to enforce by imprisonment. But imprisonment in this context is intended not to punish but to induce compliance, reinforcing the requirement that the order be one with which the defendant can and reasonably ought to comply. The court ought not to face the dilemma addressed by Staughton LJ in Guildford Borough Council v Smith [1994] JPL 734, 739.

    33. There is no reason to doubt that the Mole Valley, Reigate and Banstead (1992) 90 LGR 557 and Hambleton [1995] 3 PLR 8 were rightly decided on their facts, but they should now be read subject to this opinion.

Article 8 of the European Convention on Human Rights

    34. If section 187B is interpreted and applied in accordance with the principles adumbrated in the foregoing paragraphs, it is very questionable whether article 8 of the European Convention has any bearing on the court's approach to an application under the section. But since the European Court of Human Rights has given judgment in two cases involving Gypsies in the United Kingdom, brief reference should be made to those cases. In both it was effectively common ground that enforcement action by the local planning authority to secure the removal of the Gypsy from a site involved an interference by a public authority with the Gypsy's right to respect for her home, that such interference was in accordance with the law and that the measures pursued aims entitled to recognition under the Convention as legitimate. The issue was whether measures were "necessary in a democratic society" or, differently expressed, whether the means employed to pursue those legitimate aims were proportionate.

 
continue previous