Thurrock Council v Stokes & ors [2022] EWHC 1998 (QB), 27 July 2022.
Thurrock sought an injunction to prevent unauthorised encampments and fly tipping covering all land in the council area. The application was against 106 named defendants and (as the 107th defendant) ‘persons unknown’. The claim against persons unknown stood and still stands adjourned.
By the time of the final hearing in October 2021 Thurrock had withdrawn the claim against 58 of the named defendants. Nicklin J dismissed the claim against all of the remaining defendants.
He emphasised the cases of South Buckinghamshire DC v Porter [2003] 2 AC 558 ( where CLP represented the defendants) and Bromley LBC v Persons Unknown [2020] PTSR 1043 (where CLP represented London Gypsies and Travellers) which made it clear that the grant of an injunction is at the discretion of the court which will take into account all relevant matters in that process.
Nicklin J dismissed the claim against 16 named defendants where Thurrock had failed to prove any breach, stating (at para 412) that:
…on the facts, Thurrock has failed to demonstrate that the relevant Defendant formed an unauthorised encampment (or one that breached planning control) and/or has been guilty of any act of fly-tipping. There is therefore no factual basis (or any other evidence) to sustain any allegation that the relevant defendant credibly threatens to do so unless restrained by injunction.
He continued (at para 413(i):
…no credible evidence has been provided by Thurrock that anyone “apprehends” that any of the named Defendants will breach planning control if not restrained by an injunction.
He rejected the submissions from Thurrock’s counsel, Caroline Bolton:
On analysis, Ms Bolton’s submissions on this point simply collapse into the argument that all Gypsies and Travellers are likely to form unauthorised encampments in the future. If any of the named Defendants cannot be demonstrated to have done so yet, then Thurrock apprehends that they threaten to do so in the future and so considers it necessary or expedient to seek a borough-wide injunction against them to prohibit all future encampments on land in breach of planning control. If that argument were accepted, there would be little to stop every local authority in the country from seeking a similar order. Unhesitatingly, I reject such an argument (para 415).
He applied the ‘Porter principles’ to the case against these 16 defendants at para 417:
The starting point is that when a breach of planning control occurs or is apprehended, it is for the local planning authority to decide what to do in response. One option is to do nothing. If the breach is trivial and temporary, then it would be open to the planning authority, in the proper exercise of its powers, to take no action. If the planning authority decides to use its enforcement powers, then it can choose which power(s) to use. s.187B(1) expressly provides that it can apply for an injunction whether they have used or are proposing to use any other enforcement powers. But, as Porter makes clear, if the Court considers that the local authority has not utilised other remedies available to it before applying for an injunction, it may fail to persuade the Court that the grant of an injunction would be “just and convenient” ([99] per Lord Clyde; [38] per Simon Brown LJ). Granting the injunction in advance to prohibit all future breaches of planning control (however trivial or temporary) would mean that the Court would be abdicating its responsibility to strike the necessary balance between any competing interests in the structured way indicated in Porter.
Nicklin J also rejected the claim against the remaining 32 named defendants against whom there was some evidence of breach. He stated (at para 419):
Put shortly, the evidence of historic acts of unlawful encampment on land cannot justify an injunction in the wide terms sought by Thurrock.
Nicklin J summed up his reasoning at para 423:
i)25 of the remaining named Defendants are guilty of only one incident of unlawful encampment. One person, Anthony Doherty, has been found to have been party to 3 unlawful encampments. The remaining 8 party to 2 unlawful encampments.
ii) Most of the incidents dated back to 2016 meaning that there had been no repetition of unlawful encampment by the relevant named Defendant by the time the interim injunction was granted on 3 September 2019. There is no evidence of breach of planning control by any of the named Defendants in any other local authority area.
iii) Most of the unlawful encampments were short-lived, meaning that the breach of planning control was only ever temporary. Some were brought to an end as a result of the police using enforcement powers under s.61 CJPOA. Others ended as a result of private evictions. A minority by the occupants of the land leaving of their own accord.
iv) Few of the incidents have any significant aggravating features. None of the remaining named Defendants has been proved to have been guilty of any flytipping. Most of the allegations of disposal of waste are incidental to the encampment rather than evidence of commercial fly-tipping. Only in respect of one incident does the evidence suggest commercial fly-tipping carried out by members of the unlawful encampment …
v) None of the remaining named Defendants is guilty of repeated acts of breach circumventing previous enforcement of planning control such as to lead to the conclusion that the only way of preventing further breaches is to make a borough-wide restriction.
vi) None of the remaining named Defendants is guilty of breaches of the criminal law or been shown to have deliberately flouted the law to such an extent that the Court concludes that nothing short of an injunction will be effective to restrain him/her.
Conclusion
This judgment will be extremely important in future wide injunction applications involving named defendants and will also be important in cases brought against ‘persons unknown’.
You can find the judgment here: https://www.judiciary.uk/wp-content/uploads/2022/07/Thurrock-v-Stokes-judgment.pdf