Waverley BC v Gray & ors [2023] EWHC 2161 (KB), 25 August 2023

This was an application by the council for an injunction under Town and Country Planning Act 1990 s187B. It concerned several defendants (Ds) who were Gypsies and Irish Travellers who had set up a caravan site on land at Lydia Park, Waverley without planning permission albeit they were continuing to try and obtain planning permission.

Karen Ridge ( sitting as a deputy high court judge) refused to grant injunctions largely because of the failure of the claimant council to take into account serious welfare considerations of the Ds.

It is worth quoting extensively from the conclusion of the judge:

Conclusions on D3, D5, D6, D7, D8

109. The claimant decided that it was expedient to seek injunctive relief at a point where there was unauthorised development on the land. At that point they had little or no information about the personal circumstances of the defendants, other than their names. The application proceeded on the basis that the site was unoccupied at that time. That position was entirely reasonable.

110. Whilst the claimant continued to visit the site throughout the course of proceedings, this was to gather further information about who was on the site and what further development had taken place, if any, as well as for the purposes of serving court papers and other notices. There is little in the way of the claimant seeking to investigate the welfare position of the defendants as the proceedings continued and as further information came to light.

111. Several of the defendants have significant medical needs and very serious medical conditions. Much of the information relating to those needs has come to light late in these proceedings.

112. I remain conscious of the duty to uphold lawful decisions made by planning authorities. I must also bear in mind the consequences of a final injunction when there are no alternative sites available, and the defendants are likely to resort to unauthorised roadside camping which would lead to further environmental harm and hardship for the families and children in terms of their welfare needs not being met. These are significant factors militating against the grant of a final injunction on the facts of this case.

113. As each of these matters became apparent it was incumbent on the claimant to investigate matters and to re-assess the balance of factors in light of emerging information. The proportionality of the decision should have been revisited when the claimant became aware of these matters. There is scant evidence to suggest that the claimant meaningfully reviewed the original decision at key points when the identity and needs of individual occupants became known. The impression gained is of an initial decision being taken to pursue injunctive relief and the claimant pursuing it to a final injunction without pausing to re-evaluate the appropriateness of the use of coercive measures on becoming aware as to personal circumstances of the individuals they were concerned with.

114. Section 187B gives the court an original jurisdiction which it is to exercise as it thinks right, and subsection (2) states that the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the breach. The court must exercise its discretion appropriately.

115. As Deputy High Court Judge Timothy Straker QC in Guildford Borough Council v Cooper [2019] EWHC opined:

“Therefore, it is not for the court to act merely as a rubber stamp to endorse a decision of the Local Planning Authority to stop the user by the particular defendant in breach of planning control. Moreover, the court is as well placed as the Local Planning Authority to decide whether the considerations relating to the human factor outweigh purely planning considerations. The weight to be attached to the personal circumstances of a defendant in deciding whether a coercive order should be made against him is a task which is constantly performed by the courts.”

116. I also remind myself of Simon Brown LJ in Porter when discussing the relevance of the local authority’s decision to seek injunctive relief, commenting that 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.

117. Here the defendants accept that there has been a breach of planning control which the court should seek to address. The court must however have regard to all the circumstances, which include the best interests of the children. Given the failures of the claimant to properly engage and grapple with the significant welfare issues of these defendants, and the best interests of the children on site, once they were put on notice of the same, I conclude that there has not been the sort of evaluative exercise properly required before seeking final injunctive relief.

118. I also bear in mind that the local authority chose to seek injunctive relief which carries the threat of imprisonment as opposed to serving an enforcement notice. There is no evidence that upon learning that the site was occupied and upon discovering some of the health difficulties of the defendant, the claimant considered use of enforcement notice powers as an alternative to pursuing its injunction. It is for the local authority to apply its mind to the enforcement tools at its disposal and act proportionately. That remains a requirement as the factual matrix changes and decisions needs to be revisited.

119. There is also my conclusion that the planning status is not yet final given that the Secretary of State, on appeal may take a different view to the local authority. I also must bear in mind the significant impact that a final injunction would have. Having regard to all matters, I am satisfied that it is appropriate for the court to decline to exercise its discretion to make the final injunction requested and to discharge the interim injunction in force.

120. I wish to make it clear that, in accordance with the authorities, that this is a decision being made at this point in time, in view of the way these proceedings and the evidence has played out. That does not debar the local authority from returning to court at another point in time to seek relief from breaches of planning control or from exercising other enforcement powers.

Conclusions on D13 and D14

121. Many of the above factors apply equally to D13 and D14. However, their position is different in that they were not in breach of an injunction when they moved on to the site. The local authority could have chosen to use enforcement action against them. These defendants submitted timely planning applications and have pursued appeals with due expedition. For all of these reasons I conclude that it would be unjust and disproportionate to grant final injunctive relief against these defendants also. I decline to do so and I further conclude that the interim injunction should be discharged against these defendants.
Conclusions on Remaining Defendants

122. The Land was owned by D1 and D2 at the beginning of proceedings and the Land Registry does not appear to have been updated of changes of ownership. D1 and D2 are aware of these proceedings and have not made application to be removed. In these circumstances, given the history and past uncertainty I am satisfied that it is appropriate to grant a final injunction in negative form in respect of D1 and D2.

Wayne Beglan (instructed by Waverley Borough Council) for the Claimant
Stephen Cottle (instructed by Public Interest Law Centre) for the Second, Fifth, Sixth and Fourteenth Defendants
Felicity Thomas (instructed by Community Law Partnership) for the Seventh Defendant
Michael Fry (instructed by Brilliance Solicitors) for the Thirteenth Defendant.

https://www.bailii.org/ew/cases/EWHC/KB/2023/2161.html