|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
35. In Buckley v United Kingdom (1996) 23 EHRR 101 the Commission concluded, by a narrow majority (page 120, paragraphs 84-86), that the measures were excessive and disproportionate. Even allowing for the margin of appreciation enjoyed by the national authorities, the Commission found that the interests of the applicant outweighed the general interest. The Court, also by a majority, took the opposite view: it concluded (page 132, paragraph 84) that the responsible planning authorities had arrived at their decision after weighing in the balance the various competing interests at issue; that it was not for the Court to sit in appeal on the merits of that decision; that the reasons relied on by the planning authorities were relevant and sufficient; and that the means employed to achieve the legitimate aims pursued could not be regarded as disproportionate.
36. A majority of the Court again rejected the complaint of the applicant in Chapman v United Kingdom (2001) 33 EHRR 399. The report of this case contains a helpful and detailed summary of the factual background and also makes reference to the Framework Convention for the Protection of National Minorities, which the United Kingdom ratified and which came into force in May 1998. In this case the Commission found, by a majority, that there had been no violation of Mrs Chapman's rights under article 8 (page 420, paragraph 69), and a majority of the Court agreed (page 431, paragraph 115). The Court recognised (page 421, paragraph 73) that Mrs Chapman's occupation of her caravan was an integral part of her ethnic identity as a Gypsy but acknowledged (pages 425-426, paragraph 92) that as a supranational court it was ill-equipped to assess matters within the proper purview of national authorities and did not accept (page 426, paragraph 94) that a consensus had emerged on the practical steps necessary to give effect to the Framework Convention. It envisaged (page 426, paragraph 95) that problems might arise under article 14 if Gypsies were treated differently from non-Gypsies. In rejecting Mrs Chapman's complaint the Court (page 430, paragraph 113) was not persuaded that there were no alternatives available to her other than remaining in occupation of land without planning permission in a Green Belt area and held (page 431, paragraph 115) that
37. These cases make plain that decisions properly and fairly made by national authorities must command respect. They also make plain that any interference with a person's right to respect for her home, even if in accordance with national law and directed to a legitimate aim, must be proportionate. As a public authority, the English court is prohibited by section 6(1) and (3)(a) of the Human Rights Act 1998 from acting incompatibly with any Convention right as defined in the Act, including article 8. It follows, in my opinion, that when asked to grant injunctive relief under section 187B the court must consider whether, on the facts of the case, such relief is proportionate in the Convention sense, and grant relief only if it judges it to be so. Although domestic law is expressed in terms of justice and convenience rather than proportionality, this is in all essentials the task which the court is in any event required by domestic law to carry out. I should add that while nothing in the Court of Appeal judgment in Sheffield City Council v Smart  LGR 476 is, as I read it, inconsistent with what is said above, I should be wary of concluding that any action by a public authority seeking possession of residential property occupied by a defendant engages the operation of article 8.
38. The guidance given by the Court of Appeal in the judgment of Simon Brown LJ quoted in paragraph 20 above was in my opinion judicious and accurate in all essential respects and I would endorse it.
39. In the Berry case the Court of Appeal concluded (paragraph 49) that the trial judge had erred in regarding the Chapman case as effectively determinative of the application before him. I find no fault with that conclusion. I would accordingly dismiss this appeal with costs, and affirm the Court of Appeal's order that the matter be remitted to the Queen's Bench Division for the underlying application for an injunction to be determined.
40. In the Searle case I would again dismiss the appeal, but with no order for costs and no order for remission. The Court of Appeal was entitled to conclude (paragraph 44) that the trial judge had taken too restricted a view of the discretion which he was called upon to exercise.
41. In the Porter case I would dismiss the appeal and make the same orders as in the Berry case. The judge was wrong to regard all questions of hardship as "entirely foreclosed" by the Mole Valley (1992) 90 LGR 557 and Hambleton  3 PLR 8 decisions, as the Court of Appeal rightly held (paragraph 43).
42. I have had the advantage of reading in draft the opinions of my noble and learned friends with which I agree.
43. The question is how section 187B of the Town and Country Planning Act 1990 (as inserted in the 1990 Act by the Planning and Compensation Act 1991) should be interpreted. Section 187B reads as follows:
The Civil Procedure Rules 1998 make the provision contemplated by subsection (3): RSC, Ord 110, r 1; CCR, Ord 49, r 7.
44. The question of interpretation before the Court of Appeal was whether (as three local planning authorities contended) it is beyond the power of the court under section 187B(2) to take into account in the exercise of its discretion the hardship likely to be caused by an injunction to vacate land in the case of a defendant who was in ill health and had nowhere else to go. Counsel for the local authorities acknowledged that in accordance with the law as stated in Westminster City Council v Great Portland Estates plc  AC 661 such matters are relevant to the decisions of local authorities and the Secretary of State. Overruling first instance decisions the Court of Appeal held that such matters may also be relevant to the exercise of the discretion of the court under section 187B and it remitted the decisions for rehearing at first instance: South Buckinghamshire District Council v Porter  1 WLR 1359. The local authorities now challenge the decision of the Court of Appeal.
45. The setting of section 187B is as follows. By the 1980s it had become a notorious fact that determined individuals and enterprises could, by playing the system with the aid of lawyers, frustrate the implementation of valid planning decisions for many years. It was not only old people in caravans which caused the problem. More frequently flagrant and persistent breaches were perpetrated by entrepreneurs for commercial profit. It is true that the 1990 Act provides for a system of enforcement notices which if ignored may lead to a prosecution: section 171A. The 1990 Act also contains provisions for the service of stop notices: section 183(1). These powers were supported by the power of the Attorney General on relation of a local authority to claim an injunction restraining a breach of planning law: Attorney General v Bastow  1 QB 514. This power was supplemented by section 222 of the Local Government Act 1972 as amended. Section 222(1) provides:
There was nevertheless a strong perception that the planning system was systematically abused and that it required more effective enforcement.
46. This led to the Report by Robert Carnwath QC, entitled Enforcing Planning Control, which was published in February 1989. Paragraph 10.3 of the Report described the supplemental function of injunctions:
Mr Carnwath's recommendation was:
It will be noted that the language of section 187B follows the wording of recommendation 11 to a substantial extent.
47. Counsel for the local authorities fastened on to the italicised words in paragraph 10.3 to argue that it is the exclusive task of democratically elected planning authorities to weigh issues of personal hardship against the public interest in enforcing planning law. Taken in isolation there may be some logical force in this argument. The main emphasis of the Carnwath Report was on the public interest in enforcing planning. But Mr Carnwath did not ignore considerations of personal hardship. In para 2.8 (at p 24) he said:
In para 2.22 (at p 41) he observed that "use of the courts ensures that both sides are fully protected". In para 4.2 (at p 58) he emphasised the value of "a flexible system of interim remedies - based on the balance of convenience ". The support for the position of the local authorities in the Carnwath Report is therefore fragile.
48. Next counsel for the local authorities relied on dicta in the House of Lords, in diverse contexts, which emphasise that, subject to judicial review, the planning system is essentially one administered by democratically elected authorities: Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment  AC 132; Tesco Stores Ltd v Secretary of State for the Environment  1 WLR 759; R v Wicks  AC 92; R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and Regions  2 WLR 1389. These dicta do not directly or by useful analogy throw any light on the amplitude of the court's jurisdiction to grant an injunction operating in personam requiring a defendant to vacate land.
49. Counsel for the local authorities put forward a related point based on the structure of the 1990 Act. He submitted in his printed case, and in oral argument, that it is for the local planning authority to determine whether an injunction is appropriate, and for the court, exercising a limited review jurisdiction, to grant an injunction in terms suited to restricting the relevant breach. I would reject this argument. It depends on interpolating words into the language of section 187B(2) which are ill suited to the context. Under section 187B(2) the court is not exercising a review jurisdiction: the coercive power conferred by statute is an original jurisdiction. Moreover, the remedy is an equitable one, which prima facie carries with it the notion of a broad discretion.
50. The starting point must be the language of section 187B read in the context of its purpose viz in the words of the Carnwath Report that "use of the courts ensures that both sides are fully protected" (para 2.22, at p 41). The argument of the local authorities that consideration of questions of hardship by them means that this aspect may not be considered by the court under section 187B sits uneasily with the breadth of the statutory language. The critical provision is subsection (2) which provides that the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. "May" does not mean "shall". The notion of "appropriate" relief necessarily involves an exercise of judgment weighing the factors for and against the grant of an injunction. There is not a hint of the restriction of the court's ordinary powers to consider logically relevant countervailing considerations at the stage of the grant of an injunction.
51. The local authority is empowered to apply for an injunction under section 187B(1) whenever it considers it "necessary or expedient" to do so. I would not accept a tentative suggestion in argument that "or" in this phrase could be read as "and". In my view the local authority may apply for an injunction if it considers it "expedient", that is convenient, to do so. It is not in doubt that the local authority may take into consideration questions of hardship. But the independent criterion of expediency suggests that the intent was that the local authority is entitled to take the view that notwithstanding marked personal hardship "we will put the matter before the court for it to decide on all countervailing issues". The Encyclopaedia of Planning Law rightly points out that section 187B(1) is only "a deliberately loose entry barrier and is not the criterion upon which the court is required to act": P187B.09.
52. Procedural considerations pull in the same direction. There may be a delay between the decision of the local authority and the hearing of application for an injunction by the court. During this period the personal circumstances of a defendant may change adversely, eg the individual may suffer a stroke or a heart attack. On the interpretation of the local authorities the solution is the contrived one that the matter should be adjourned for the local authority to reconsider the decision already taken. If the Court of Appeal's decision is correct, the solution is simple and straightforward: the court will consider the case in the round as it is presented to it on the day of the hearing.
53. There is an even more important factor to be taken into account. The terms of an injunction must be strictly observed. The potential penalties upon a breach of an injunction are considerable. The local authorities argue that, while personal hardship may not be taken into account by the court considering the grant of an injunction, the court will be able to do so in considering what penalties to impose in committal proceedings. The concession is, of course, inevitable. But it results in the situation that, even in a case where the judge would not contemplate sending a defendant to prison for a breach, he must nevertheless impose an injunction carrying that threat. Such an approach does not advance the rule of law. It tends to bring the law into disrepute. In the Court of Appeal Simon Brown LJ found the right balance. He observed, at p 1377 B-D, para 38:
I would endorse this approach. In short the granting of an injunction under section 187B is an equitable remedy and the court has a wide discretion.
54. A series of Circulars issued by the Department of Environment, and its successor the Department of the Environment, Transport and the Regions, have since 1991 emphasised the width of the power of the court and that injunctive relief must be a commensurate remedy in the particular case: Circular No 21/91 dated 16 December 1991, para 7; Circular No 18/94 dated 23 November 1994; Circular No 10/97, dated 31 July 1997, para 5.10; DETR guidance dated 26 July 2000, para 9. Section 187B came into force on 2 January 1992: SI 1991/ 2905. But it received the Royal Assent on 25 July 1991. These circulars are not relevant to the construction of section 187B: they were not part of the contemporary materials available to Parliament when the legislation was passed. On the other hand, they may arguably have some value as persuasive evidence of the workability of the interpretation preferred by the Court of Appeal. It is unnecessary, however, to rely on these materials in the present case.
55. That leaves two Court of Appeal decisions which undoubtedly assist the argument of the local authorities. The first is Mole Valley District Council v Smith (1992) 90 LGR 557. The defendants, who were Gypsies, had persistently flouted planning laws in respect of caravan sites. They relied on the fact that the city council was in undoubted breach of its statutory duty to Gypsies by failing to provide sufficient sites for them. Lord Donaldson of Lymington MR relied on a dictum of Hoffmann J at first instance which was to the following effect (at p 567):
With the agreement of the other members of the court the Master of the Rolls dismissed the appeal against the grant of an injunction.
56. The second decision is Hambleton District Council v Bird  3 PLR 8. Despite persistent breaches of the planning laws the judge had refused to grant an injunction requiring the defendants to vacate certain land. The Court of Appeal held that the judge had misdirected himself by taking into consideration the merits of the planning decision and whether a further application for planning permission might be successful; and he wrongly considered the availability of alternative accommodation for the respondents, the evidence that the official site was unsuitable, and the hardship to the respondents: see p 17D. There are passages in the judgments which suggest that under section 187B hardship is legally irrelevant to the exercise of the court's discretion.
57. These decisions pre-date the coming into operation of the Human Rights Act 1998. But even under domestic law the dicta were in my view too austere in so far as they appeared to suggest that even great hardship was irrelevant. A civil society requires a fairer and more balanced approach. There was insufficient allowance for the equitable nature of the remedy and the width of the discretion. On this ground alone these decisions of the Court of Appeal should no longer to be treated as controlling.
58. In any event, the new landscape of the Human Rights Act 1998 requires a different perspective. Article 8 of the European Convention on Human Rights contains a fundamental right. It reads:
It is unlawful for the court to act in a way which is incompatible with a Convention right: section 6(1). Even if it had previously been possible to ignore great or marked hardship in the exercise of discretion under section 187B - a hypothesis which I do not accept - such an approach is no longer possible. Sometimes, perhaps more often than not, the interference with a Convention right may be justified on public interest grounds. But effective protection of a Convention right requires the court to approach the matter in a structured fashion in accordance with the principle of proportionality. What in the context of the present case is required was explained by Simon Brown LJ in terms on which I cannot improve. He said, at p 1378 D:
Plainly, the protection of the relevant Convention right would not be effectively protected by leaving it to local authorities acting under section 187B(1) to consider matters of hardship under article 8. It follows that, whatever their earlier status, the reasoning in the Mole and Hambleton decisions are no longer authoritative or helpful.
59. For the reasons given by my noble and learned friend Lord Bingham of Cornhill, as well as the reasons I have given, I would make the orders proposed by Lord Bingham.
60. These three appeals concern the enforcement of planning control against gypsies who were occupying lands in the areas of the respective local authorities without planning permission to do so. The respondents in one of the appeals, that of Chichester District Council v Searle and others did not present argument at the hearing because they have sold the lands in question and left them. In each of the two remaining cases planning permissions have been given at least to secure the occupation by the respective respondents but these are currently under appeal. The issue before this House relates to the granting of injunctions against the respective respondents under section 187B of the Town and Country Planning Act 1990.
61. Section 187B provides:
62. It is undisputed that under subsection (2) the court has a discretion. What is in dispute is the extent of that discretion, in particular with regard to the possible effects of an injunction on the defendants by way of hardship. The appellants contend that the role of the court is essentially a supervisory one. On their approach, if the local authority have considered the question of the possible hardship to the defendants, and all other relevant factors, the court may not explore such matters but must accept the conclusion reached by the authority. The respondents argue that the particular point of dispute in the present cases is whether the court may consider the consequences of the injunction for the defendants in deciding whether or not to grant it. They contend that at the very least the court may properly have regard to the possible hardship for the defendants. The issue thus raises questions about the precise scope of the discretion given to the court by section 187B(2).
63. It may be noted at the outset that the section is talking about an injunction. This is not a new remedy created by Parliament but a familiar and long-established form of remedy in English law. What the section did was to give an express statutory power for local planning authorities to apply to the court for that remedy and a discretion in the court to grant it. The power was given expressly to local planning authorities, so that this remedy may not be sought under the statute by anyone else. Parliament imposed an express pre-condition for the application upon the authority, namely that it must consider it necessary or expedient for an actual or apprehended breach of planning control to be restrained by injunction. That initial step of consideration is one which they must have taken before they can make the application and it serves as an initial restraint on the power to make the application under the Act. It does not seem to me to bear upon the problem of the scope of the court's discretion. I note in passing that we are not required in the present case to explore the application of the possibly overlapping tests of "necessary or expedient".