Taunton Deane Borough Council v Peckman & others (2024)

[2010] EWHC 2437 (QB)

Before:

The Hon Mrs Justice Sharp

Case No: HQ05X00297

Between:

Taunton Deane Borough Council

Claimant

and

Packman and ors

Defendants

Richard Langham (instructed by Sharpe Pritchard) for the Claimant

Alex Offer (instructed by Community Law Partnership) for the 5 ^th, 6 ^th, 9 ^th, 34 ^th & 35 ^th Defendants

1

Taunton D eane Borough Council, ("the Council") is the Local Planning Authority for North Curry, Taunton. The Council applies for an injunction pursuant to section 187B of the Town and Country Planning Act 1990 (the Act) requiring gypsy caravans to be removed from land at Oxen Lane, North Curry, Taunton (the Site): specifically from two plots there numbered 8 and 16. The occupants of those two plots are various members of the Holland and the Smith families. The adult members of the families are the only defendants still in occupation and therefore represented at this application. I shall refer to them during the course of this judgment as the represented defendants 1, or the Hollands and the Smiths. John Holland and Tracy Holland occupy plot 8 with their three daughters (Krystle and Sophie Marie who are adults, and Tracey Anne) and Sophie Marie's husband, Luke Steven. John (also called Jim) Smith and Sarah Jane occupy plot 16 with their three children, Jimmy Dean, Adam Lee and Riley James.

2

Section 187B provides as follows.

"(1) Where the 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 their 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."

3

Guidance as to the approach the court should adopt when considering whether relief should be granted on an application for a section 187B injunction was given by the House of Lords in South Bucks DC v Porter [2003] UKHL 26 [2003] 2 AC 558. See also Davis v Tonbridge BC [2004] EWCA Civ 194, and South Cambridgeshire DC v Flynn [2006] EWHC 1320.

4

It is clear from the section and the authorities cited above that the court has an original jurisdiction rather than one which is supervisory of the local planning authority's or the Secretary of State's planning decisions, and must exercise an independent judgment in deciding whether an injunction should be granted, balancing the various factors which may arise for consideration in such a case. These include those identified by Simon Brown LJ in his judgment in the Court of Appeal in Porter, in a passage expressly approved by the House of Lords and quoted by Lord Bingham in his speech at paragraph 20:

"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."

The history

5

The Site is in an agricultural field on the edge of the village of North Curry. It is just under 6 acres in size and immediately adjoins a residential property, 6 Oxen Lane, to the north. There are several other residential properties further along Oxen Lane. The land itself falls to the south. There are only limited near views of the Site, but it is clearly visible in a wide panoramic view from vantage points along the North Curry Ridge to the south.

6

The Site was first established as a gypsy caravan site over the weekend of the 23/24 ^th October 2004. 16 pitches were created in breach of planning control. Plots 8 and 16 were at the lower end of the Site. An access track was constructed through the middle of the Site from Oxen Lane which gave access to all of the plots. The individual plots were in separate ownership.

7

On the 29 October 2004 the Council issued a Stop Notice and an Enforcement Notice which required the occupants to stop using the land as a permanent gypsy site, to remove caravans and dayrooms and to reinstate the land to the condition it was in before occupation. In an application dated 19 October but date stamped the 26 October 2004, 16 applications for planning permission were...