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Chelmsford Borough Council v David John Steers, Queenie Lee Steers
High Court of Justice Queen’s Bench Division
17 December 2003
Neutral Citation Number: [2004] EWHC 3395 (QB)
2003 WL 23721511
Before: Mr Justice Fulford
Wednesday 17 December 2003
Mr A Ranatunga (instructed by Chelmsford Borough Council Legal Department) appeared on behalf of the Claimant.
Mr D Altaras (instructed by Bar Pro Bono Unit) appeared on behalf of the Defendant.
1. The claimant in this case, Chelmsford Borough Council, seeks an injunction pursuant to section 187 B of the Town and Country Planning Act 1990 against both defendants, David John Steers and Queenie Leigh Steers, to restrain further breaches of planning controls by them in their use of land which the first defendant has owned since 30 July 1997, and they both occupy together with their four children (aged 12, 11, 7 and 1) at Sunnymeade, Ingatestone Road, Highwood, Chelmsford. The first defendant bought the property for £7,000.
2. The land lies in open countryside within the Metropolitan Green Belt and its permitted use is for agriculture only; it is within a nature conservation area and under a local designation, that recently ceased to apply, it was in a Special Landscape Area. The claimant is the Local Planning Authority for the administrative area within which the land is located. The papers before this court include extensive photographs taken by representatives of the claimant between 19 August 1997 and 20 November 2002 and a few very up-to-date photographs produced by the defendants which collectively reveal many of the changes and developments that have occurred on this property.
3. The land is set within mixed deciduous hedges, conifer hedges and a recently planted laurel hedge. The surrounding area is made up of a mix of fields, houses and cottages, and a scrap yard. The house immediately adjoining this plot has been vacant for about 18 months. The living accommodation on the plot in the form of both a mobile home and caravans, as well as various sheds, has changed as the years have gone by, as can be seen from the photographs.
4. A previous planning application for a dwelling made before the first defendant purchased this property was refused, and the appeal against that refusal — pursued by a former owner — was rejected. I am unable to attach any weight to the particulars issued by Walkers, agents engaged at the time of the sale of this property to the first defendant, which in the course of advertising the plot as agricultural land stated at paragraph 5:
“The plot is not for sale subject to any planning applications, but for speculative purposes or uses which are currently allowed.”
5. In the absence of any evidence as to what this statement meant or referred to, in my judgment no weight should be attached to it.
A summary of the respective cases
6. The case for the claimant is that the land in question is less than five hectares in extent and permitted development rights to station caravans do not attach to it. It is said that in breach of planning controls the defendants have caused or permitted the formation of a roadway and hard standing on the land, and they have stationed caravans, mobile homes and a sectional building on it for residential use. In addition it is said they are responsible for the construction of three sheds currently on this plot. It is submitted that in the light of the history of this case the only effective way of restraining further breaches is to grant injunctive relief. It is said by the claimant that this relief would be proportional. The case for the defendants is that the claimant has failed to bring the local plan up-to-date in relation to gypsies in that there has been no, or insufficient, attention paid to identifying appropriate private sites. Further it is submitted that the relevant committee that made the decision to apply for this injunction was insufficiently informed, indeed was misled, about the overall circumstances of this case and as to some aspects of central government guidance.
7. Finally, it is submitted that given the difficulties for the defendants in finding an authorised private site and the hardship that would follow if this application is granted, those matters outweigh the environmental concerns that underpin the claimant’s case. Accordingly it is argued that this proposed remedy is not a proportional one. The defendants submit that the environmental damage is not great and, in any event, is insufficient to justify the grant of this relief.
8. They were also arguments advanced about delay on the part of the claimant which in the event were not pursued with any vigour by Mr Altaras who appeared for the defendants.
The relevant national and local planning policies
9. The site is within the Metropolitan Green Belt where restrictive and national planning policies apply to control the development of land. These policies are set out in the National Government Planning Policy Guidance No. 2 “Green Belts”, Circular 1/94 “Gypsy Sites and Planning”, and the Local Chelmsford Borough Development Plan (April 1997) which is supported by, and must be read to an extent subject to, the Essex and Southend-on-Sea Replacement Structure Plan (April 2001). In summary, those policies restrict development in this context within the Green Belt to situations when very special circumstances apply. Circular 1/94 at paragraph 13 sets out as follows:
“Gypsy sites are not regarded as being among those uses of land which are normally appropriate in Green Belts. Green Belt land should therefore not be allocated to gypsy sites in development plans.”
10. Paragraph 2.99 of the local plan adopted in April 1997 sets that out that:
“Gypsy sites are not uses that are normally appropriate in the green belt and permission will only be given in very special circumstances.”
Those examples of what is essentially now a consistent approach to planning in this context make it clear that use of Green Belt land for a gypsy site will not accord with the relevant criteria, save perhaps in exceptional circumstances. Mr Altaras appearing for the defendants correctly points out that any local plan should not conflict with the National Structure Plan.
11. The current local plan was intended to last only until 2001, but the replacement plan had to be withdrawn after objections were made concerning the allocation of housing provision in a different part of the borough. One of the substantial changes that necessitated the publication of Circular 1/94 “Gypsy Sites and Planning” was that county councils ceased being under a statutory duty to provide sites for gypsies, and that obligation imposed under the Caravan Sites Act 1968 was repealed. The new approach set out in the circular was that in future additional emphasis should be accorded to the wish expressed by many gypsies to find and buy their own sites: paragraph 4 of 1/94. The circular highlighted the need to formulate plans on the basis of consultation with gypsies, their representative bodies and local support groups: paragraph 7 of 1/94. The circular recognised that local planning authorities should continue to indicate the regard that they have for meeting gypsies’ accommodation needs, and they should use appropriate locational and/or criteria-based policies.
12. The need for up-to-date information was stressed, and this is partially provided by the six-monthly counts. In this regard, as rehearsed in Government Guidance PPG 12 “Development Plans” (paragraph 4.14) and reflected in Policy H6 of the Essex and Southend-on-Sea Replacement Structure Plan, the local plan should, wherever possible, identify a location or locations suitable for gypsy sites, whether local authority or private. Where this is not possible they should set out clear and realistic criteria for suitable locations as a basis for site provision policies (paragraphs 11 and 12 of 1/94).
13. It is to be noted that Mrs Lyons, the Enforcement Team Leader for Chelmsford Borough Council, said during her evidence before me that for the 1997 local plan the usual consultative process would have been followed and that H0 17, the provision dealing with gypsy caravan sites, was not the subject of objection by any local gypsies or their representatives. I note that H0 17 was amended to reflect Circular 1/94. Further Mrs Lyons’ evidence was that the Regional Housing Group was looking for future housing needs over the whole of this area; the claimant contributed to this investigation; the work had a particular focus on all ethnic groups and, despite invitation, the travelling community refused to participate in the process.
14. Mrs Lyons readily accepted that the 1997 local plan at H0 17 is defective as it stands because it did not reflect the requirement set out above out for the authority to consult and identify the needs of the relevant part of the community. However, an attempt at consultation, as indicated above, had been made and, in addition, in the recent past the Council has provided three to four new plots at Meadow Lane.
15. She said that in practice the local authority read and applied H0 17 together with H6 because the latter contains the present requirement, rehearsed above, that the borough should identify both need and sites, with realistic criteria being established if the latter could not be provided. In those circumstances, I find on the evidence before me that as regards establishing a local policy for gypsies, the overall approach of the claimant did not conflict with the requirements of national policy.
The relevant local provision of sites
16. Up until 1989 the local authority had 39 sites, and following that date the claimant granted a further 22 sites split between Writtle and Little Waltham in 1990 and 1992. In 2000, the claimant granted a further 18 or 19 sites at Meadow Lane, Runwell in the south of the borough. This was achieved by the compulsory purchase of land which had been used for 15 unauthorised sites; the upgrading of that land; the relocation of the sites; the grant to the original 15 occupants of authorised sites and the provision of an additional three to four sites. Mrs Lyons accepted that the claimant had not identified any suitable private sites in the borough.
17. When asked about applications that had been made over the last five years for planning permission for private gypsy sites, she identified the following: first the sites just referred to at Meadow Lane, where 15 private sites will be granted planning permission subject to finalizing the compulsory purchase aspects of this project. Second, there will be three or four additional private sites at that location which will be covered by planning permission in due course. Third, there is a further site in Meadow Lane occupied by one traveller with five adjoining transit plots. An application for planning permission in relation to that site was the subject of litigation that reached the Court of Appeal. For the purposes of this judgment I need only say that there were will be a local inquiry into the proposal that this should become an authorised site.
18. Fourth, an application for a private site near the Green Man Public House at Highwood was refused. The appeal against that decision was dismissed. Fifth and lastly there was an application for planning permission for three sites in north Chelmsford that was refused and the appeal against that refusal was abandoned. In the result, three applications have been refused and three or four new private plots will receive planning permission at Meadow Lane. No new local authority sites have been established, but none have been lost.
19. Mrs Lyons agreed that although the gypsy community had not assisted in the research carried out by the office of the Deputy Prime Minister, it is probable that there is an unfulfilled demand for gypsy sites although the transient gypsy Irish community makes it extremely difficult to assess real need and the extent to which, in particular, there are displaced local travellers.
20. Government Guidance “Housing” PPG 3, in Mrs Lyons’ view, would allow for an application to be made by a gypsy for occupation on an infill site even within the Green Belt as part of planned housing development generally. She accepted that between 2001 and 2015 the borough, 45 per cent of which is within the green belt, will need to permit the building of a further 11, 250 houses. She said the council is looking at brown field sites, unused land covered by the previous local plans and land in built-up areas. However, Mrs Lyons accepted that these alone would not provide sufficient land for this increase in housing. The overall tenor of her evidence was that there is a real tension for those involved in formulating planning policy, between the need to designate sites for dwellings of all kinds and to maintain the environment.
The history
21. It is accepted that the second defendant is a Romany gypsy and was born in Essex and that the first defendant, who was born close to this plot, travelled in a caravan with his father who was a Romany when he was young. The claimant has throughout treated this family as gypsies and I have approached the case on that basis.
22. The relevant history to this case is set out hereafter and in the main I have taken the facts, particularly in-so-far as they are undisputed, from the witness statements of Christine Lyons dated 20 January and 23 July 2003 respectively and from her oral evidence. In addition I have heard from the first defendant, whose evidence I have considered with care. At some stage in the past the defendants abandoned living on unauthorised sites and occupied a County Council operated site in Little Waltham. Although the precise dates are uncertain, in due course they gave up this secure authorised pitch in order to travel. Thereafter they lived for three years on an authorised site in Writtle, again operated by the County Council. On leaving this site they accepted a tenancy of a council house at 11 Oak Cottages, Main Road, Boreham Chelmsford on 7 August 1995. The defendants terminated their tenancy of these premises voluntarily on 1 September 1997, two months after they purchased the land that this court is concerned with. The claimant first noticed the construction of the hard standing and the use of the land as a caravan site in August 1997. The defendants were visited by a representative of the claimant on 20 August 1997 and they were advised that the creation of an area of consolidated hard surface and the stationing of a caravan were unauthorised and would need planning permission. According to the official, the first defendant said that these breaches of planning control would be dealt with. The first defendant in evidence before me accepted that he may have been warned that placing a caravan and living on the property was unauthorised. The claimant wrote to the defendants on 9 September 1997 informing them that they were in breach of planning control and advising them of the risk of planning enforcement action, and that the breaches remained unabated.
23. On 3 November 1997, the first defendant submitted an application for a Certificate of Lawfulness of an existing use under section 191 of the Town and Country Planning Act 1990. He maintained that the residential use of the site was an existing lawful use that covered a period in excess of 10 years. His case was that a caravan had been on that site since the war, and that he had been told this by the estate agent dealing with the property when he bought the property. He said at that stage there was an old run-down caravan collapsed onto its chassis on the site. This application was determined on 27 January 1998: the claimant refused to issue a certificate on the grounds that it was not satisfied that the use had continued for more than 10 years.
24. Three enforcement notices were issued on 9 February 1998; two of those remain relevant as regards today’s application, namely: “(a) the change of use of agricultural land to use as a caravan site and (b) the construction of hard standing and an access track and the depositing of hard core.”
25. The appeals by the defendants against the enforcement notices were dismissed on 6 October 1998. The inspector amended the notices by extending the time for compliance in the case of two of the notices. In respect of the unauthorised use the time was extended from four to eight months. In respect of the removal of unauthorised works the notice was amended from four to nine months. Accordingly the notices should have been complied with by 6 June 1999 and 6 July 1999 respectively. On 20 February 1998 a planning application was submitted by the second defendant seeking retrospective consent for the use of land for a mobile home and to retain the hard surfaced areas. The planning application was refused.
26. As the defendants made no attempt to vacate the land by May of 1999, the claimant provided assistance to the defendants and they were offered the help of the council’s housing services and the gypsy liaison officer. The defendants registered with the claimant’s housing services on 23 June 1999. On 21 March 2000, the first defendant was convicted of failing to comply with the enforcement notices having pleaded not guilty. He was fined £150 for each offence and was ordered to pay costs in the sum of £200. Prior to the imposition of the fine the first defendant gave an undertaking to the Justices that he would comply with the enforcement notices.
27. Following the first defendant’s conviction, on 19 June 2000 the family was housed under the homelessness provisions of the Housing Act 1996 and they were granted a non-secure tenancy of 52 Rectory Road, Writtle Chelmsford. A planning application was submitted on 4 July 2000 on behalf of the first defendant for the construction of a bungalow on the land which was refused on 21 August 2000. The first defendant’s appeal against that refusal was dismissed by the Planning Inspectorate on 5 March 2001. Site visits undertaken by the planning officers revealed that the enforcement notices had not been complied with: two caravans remained on the site and the reinstatement works had not been undertaken. Three further wooden buildings had been constructed.
28. On 19 January 2001 the claimant issued further summonses against the first defendant for his continuing failure to comply with the enforcement notices dated 9 February 1998. Further enforcement notices were served personally as regards the three further structures on 19 March 2001. These notices have not been made the subject of any appeal, and they have not been complied with. On 19 March 2001 the first defendant returned the keys to 52 Rectory Road and said he was going to be travelling. In fact, as I understand the evidence, he and his family returned to live on this plot.
29. The first defendant was convicted by his own plea on 19 September 2001 for failing to comply with the 1998 enforcement notices. He was fined £100 on each of the two offences. By a letter dated 5 October 2001, the claimant indicated that an application for an injunction under section 187B of the Town and Country Planning Act 1990 would be considered by the Planning Committee. The defendants were told they could make representations to the committee, although in the event none were made. On 17 December 2001 the committee resolved to seek this injunction.
30. As an act of grace, the committee wrote on 27 February 2002 reminding the defendants of this decision and allowing a further period for compliance. However, a further application for planning permission was submitted on 10 April 2002 for the stationing of a mobile home and a utility room on the land. The application was refused on 12 June 2002. The appeal against the refusal of planning permission has been heard and was dismissed on 7 April 2003 by an inspector appointed by the Secretary of State who concluded:
“The siting, appearance and juxtaposition of the existing development, together with the storage and vehicles within the appeal site is at odds with the rural ambience of the area”.
The evidence
31. The claim for this injunction was issued on 20 January 2003, and in support of it, as indicated above, I heard evidence from Mrs Lyons, the Enforcement Team Leader for the claimant. She has been involved in the issues concerning this site since September 2001 and a large part of the material relevant to the period before that date is based on the records to which she had access, as maintained by the claimant. No point has been taken on the admissibility of this material, nor has it been suggested that it is unreliable or inaccurate. Certain forensic points, however, are made about it to which I will turn later in this judgment.
32. The defendants have not at any stage filed witness statements. The case entered the Queen’s Bench Division warned list on 12 November 2003. Mr Altaras’ skeleton argument is dated 8 December, therefore some nine days prior to the hearing before me. Notwithstanding the failure to file witness statements, because Mr Altaras is instructed by the bar Pro Bono Unit, and does not have the support of instructing solicitors, I allowed the first defendant’s application to give oral evidence.
33. The first defendant told me about what his family experienced when they lived in other circumstances, as follows:
(i) when on unauthorised sites, in reality the side roads, petrol bombs and stones were thrown at them and passing cars sounded their horns.
(ii) on the borough site at Little Waltham, they had a small plot alongside 11 others. They were there for three years, but they experienced problems with their neighbours. There were drugs found on the site; his dog was shot and his car was both damaged and blocked in on occasions. He considered this was not an appropriate environment for his oldest boy.
(iii) After a period back on the road they moved to the borough site of Writtle in 1995. Again the family found that drugs were being used or sold; there were rows with the neighbours; it was messy and surrounded by trees. Access to the site and the supply of electricity founded further problems.
(iv) At 11 Oak Cottages his family did not like being “trapped” in a conventional house and they were resented by some of the local community.
(v) At 52 Rectory Road, they had some difficulties with a particular neighbour who behaved eccentrically; other neighbours were unfriendly and they had similar feelings as with 11 Oak Cottages about living in a conventional house. He described the second defendant as having been turned into a nervous wreck by living in conventional houses and he said it imposed a strain on their relationship.
34. Turning to the instant property, his evidence was that when he bought the site there was some hard standing by the gate which he extended and renewed and he laid grass. Although sheds and caravans have come and gone, there are now three sheds comprising a wooden garage, a shed for goats and a chicken shed, as well as a caravan and a portable cabin. He and his family feel safe and secure at this address; it enables his children to attend a local school and he is able to bring them up in a dignified and proper way. Whilst still attending shows, particularly in the west of England, they hope to live most of the time at this permanent base.
35. Some local residents have signed a petition that I have read supporting his wish to live on this plot. He says the land is tidy; it is surrounded now by hedges; and if he is able to live at this address long-term he will further improve it by, for instance, erecting pillars at the entrance.
36. On 12 August 1998, Doctor Spurr wrote a letter stating that the second defendant has a significant back problem. She has curvature of the spine with a tendon muscle spasm and sciatic nerve irritation. She has a prolapsed disk, but the condition then was not sufficiently serious for surgery. The doctor’s opinion at that stage was that a caravan is not appropriate accommodation for her, and accordingly he would not recommend a life of travelling. There is, however, no more up-to-date information on this issue.
37. The first defendant’s case is that if this injunction is granted, he will take his family back onto the road. He will not live at a site run by the council or in conventional accommodation. He is particularly concerned about the impact travelling would have on the education of his children, although he said the second defendant would be pleased with this turn of events, welcoming a return to that life. Land prices are such that he could not afford to buy another site in the Chelmsford area with better prospects of gaining planning permission. He accepts that the case he has presented before this court contains essentially the same arguments that he deployed before the inspectors, Mr Hyland, who gave his decision on 6 October 1998, and Mr Brown whose decision is dated 7 April 2003.
The proceedings leading to this application
38. It is necessary for this court to consider the decisions taken on the one hand by the claimant (in deciding to use section 187B) and by the two relevant inspectors it appointed (in dismissing the appeals) on the other, because it is relevant to establish whether or not the planning authority took into account the personal circumstances of the defendants and any hardship an injunction may cause. At paragraph 20 of his decision, Mr Hyland stated:
“Turning to the particular circumstances of the appellants, I note what you say about them having nowhere else to go if they are unsuccessful in these appeals. I am also conscious that over the last five years or so they have chosen to give up pitches on two official sites within the borough as well as local authority housing accommodation. In that context I accept that they have their own reasons for having rejected these options, each of which was no less accessible to school and medical facilities than the appeal site. However, none of these reasons were forthcoming at the hearing other than a clear preference for the relative seclusion of the appeal site away from other families. Whilst that aspiration is understandable, and is one which might be shared by many other families living in more conventional accommodation, I am not persuaded that it is of such weight as to justify overriding the strong objection which arises to inappropriate development within the green belt. Although I recognise that a travelling lifestyle could exacerbate Mrs Steer’s back problems, this would have been evident before the family vacated their pitch at Writtle, or the house and in that context, I note that her doctor’s opinion does not support her continued residence in a caravan. Whilst the appellants may face hardship if they are obliged to vacate the appeal site, the evidence suggests that it would stem largely from the decisions which they themselves have made rather than any failure on the part of the Local Planning Authority to make adequate provision for their accommodation. In that respect it is relevant that had Mr and Mrs Steer taken competent and professional advice before purchasing the land they would have been aware that planning permission had previously been refused for the erection of a dwelling on the land and the decision was upheld on appeal.”
39. It is submitted that Mrs Lyons misled the Planning Committee that met on 17 December 2001 and which decided that this injunction should be sought. I do not accept those arguments. In her detailed report for the committee she set out the history to this case extensively and included a number of quotations from Mr Hyland’s decision. She drew attention to the implications of the Human Rights Act and the need to ensure that there is a pressing social need for interference with the life of this family such as to constitute a proportionate response. I accept her evidence that she reported orally on the health, welfare and education matters that were not fully available at the time the report was drafted. She quoted Mr Hyland as suggesting this was a particularly sensitive site. He did not use those words, but he did refer to the fundamental presumption against inappropriate development within the green belt, and to the fact that this plot was within a special landscape area and a nature conservation site.
40. Notwithstanding an inappropriate reference to circular 28/77 — which had allowed gypsy sites within the green belt subject to severely restricted policies — she gave the committee the correct and all-important reference to the circular then in force: 1/94. In my judgment on all of the key issues her advice to the committee was, in reality, full, balanced and appropriate. The defendants were given an opportunity which they failed to take, as I have already indicated, to address the Planning Committee when they considered whether this application should be made.
41. In consequence, the decision of the Local Authority to apply for this relief has been made against the background of all material considerations having been weighed and including those relating to necessity and proportionality. In the circumstances there is no basis for suggesting they adopted an inappropriate or unreasonable approach in their decision to apply for this relief.
42. In his report of 7 April 2003 Mr Brown stated at paragraph 14:
“The appellants contend for a number of reasons they found the aforementioned gypsy sites and accommodation unacceptable. In accordance with Government policy, they are attempting to secure their own site as a base. However, when determining the 1998 appeals against enforcement notices, my colleague considered in detail their personal circumstances. He concluded that the fact that they were gypsies did not in itself confer any special status in relation to green belt policies.”
43. Thereafter the inspector set out the quotation above from Mr Hyland [38], observing:
“I consider that these conclusions are equally valid today”.
44. At paragraph 15 Mr Brown stated:
“The appellants might well have experienced problems with their earlier accommodation and wish to secure a relatively isolated location for a dwelling. However these circumstances do not justify setting aside nationally accepted guidance regarding development within the green belt. Such situations could be repeated many times throughout the countryside. With regard to the educational needs of their children, at present they attend schools in Moulsham, some four kilometres south east of the appeal site and also at Walsham within Chelmsford. I accept that the present accommodation might well be convenient with regard to access to these facilities. However, this is a transitory situation. As the children grow up they will move to senior schools which may be nearer or further away from Sunnymead. Again, therefore, this situation does not justify setting aside established green belt guidance.”
45. Then at paragraph 18 the inspector set out as follows:
“The structures and vehicles within the appeal site have been described above. The boundary … comprises of a hedge and timber fencing panels which to an extent screens the existing development from direct view from the adjacent highway. However, such a combination of materials is in itself an alien feature in the countryside. A hedge to the east defines the appeal site with relation to the adjacent open farm land. However, there is no clearly defined northern boundary. Consequently the appeal site is more readily visible from the north when in addition to the aforementioned features the general paraphernalia of domestic life is seen again a backcloth of attractive countryside. I acknowledge that there are a number of buildings within the general proximity of the appeal site. However, these are of traditional construction and appearance and fit easily within the pleasant open countryside. Whilst as stated I have no details of the proposed utility room before me, the existing single storey mobile home has a semi-permanent appearance. Therefore, I am of the opinion that the siting, appearance and juxtaposition of the existing development, together with the storage of vehicles within the appeal site is at odds with the rural ambience of the area. I see no reason to believe that the erection of the small utility room would significantly alter these circumstances”.
The law
46. The principles in relation to the grant of injunctions in these circumstances are that:
(a) The court has a discretion as to whether an injunction should be granted. This discretion should be exercised with due regard to the purpose for which it was conferred, here to restrain actual threatened breaches of planning control. This is an original and discretionary, not a supervisory jurisdiction. The power exists mainly to permit abuses to be curbed and urgent solutions provided where these are called for.
(b) The court need not examine matters of planning policy or judgment that are the exclusive preserve of the authorities administering the planning regime.
(c) Nevertheless the court is not obliged to grant relief because a planning authority considered it necessary or expedient to restrain a planning breach.
(d) The court should have regard to all the circumstances, including the personal circumstances of the family, and the availability of other suitable accommodation. In this context, I accept that particular attention should be given to the position of members of the gypsy community, their needs and their lifestyle, together with any shortage of pitches or appropriate sites in the relevant area. Genuine absence of appropriate alternative accommodation makes the interference potentially more serious and, depending on other factors, may require greater justification.
(e) Having regard to section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms, the court should only grant an injunction where it is just and proportionate to do so.
(For the basis of the propositions set out at (a)–(e) above, see in particular South Bucks DC v Porter 2003 App C 558 2003 UK HL 26.)
47. The claimant maintains it has considered carefully its obligations to the defendants, particularly since the coming into force of the Human Rights Act 1998 on 2 October 2000. In the light of the matters set out above, I accept the claimant has approached these issues scrupulously. Whilst always seeking to deal with these planning breaches, it has not acted precipitously and has carefully weighed, as have the inspectors, all of the relevant issues.
48. This court recognises that this injunction, if granted, would have the effect of displacing the defendants and their children from land they have occupied albeit without authorisation as a home. Three of the children are happy at their school, Moulsham, which is about six miles from this site. They are within the Ofsted category of most at risk within the education system. One child has special needs and another has learning difficulties. I accept the observations set out by Sally Naylor, the area manager for the relevant education service, in her letter of 15 December 2003, that it is important that these children remain at this school. The grant of an injunction in these circumstances constitutes a probable interference with their rights under Article 8 and Article 1 Protocol 1 of the European Convention on Human Rights and Fundamental Freedoms. It needs to be borne in mind that with the gypsy community interference of this kind can affect the ability of members of this community to live their private and family life in accordance with their tradition, and to maintain their identity.
49. However, there are wider considerations that also come into play. This court must pay heed to the obligations imposed on the claimant of enforcing the planning law and of upholding the rights of others living within the borough in the sense of protecting the environment for the benefit of the community as a whole. All of these matters are of general public importance. My conclusions in this regard are set out at [53].
50. In this case, it is to be regretted that there have been extended, numerous and flagrant breaches of the planning laws. The defendants have failed to comply with a significant number of lawful notices served on them as rehearsed above, and, in consequence, the first defendant has been convicted on two occasions. He has given undertakings both to the claimant and to the courts that have not been honoured. The defendants have twice occupied and then voluntarily vacated conventional housing provided by the claimant. Notwithstanding their plea, that as gypsies they should not be expected to live in a house — a plea I have very carefully borne in mind and assessed — this court cannot overlook their previous occupation of two houses owned by the claimant for an overall period of about three years.
51. In those circumstances, the defendants’ contention that as a family they are unable to live in a house and that it is unreasonable to expect them to do so even for a relatively limited period of time does not have the force it might otherwise have had. That conclusion is significant in the context of the balancing act that I must perform, weighing the need to enforce the planning laws and to protect the environment as against the particular interests of the defendants and their four children.
52. As I have just observed, the defendants have demonstrated a complete disregard for the planning process. They have failed to comply with enforcement notices and their own undertakings. I am sure that nothing short of an injunction will suffice to make them meet the obligations imposed on them. This is a case where in my judgment the breaches will continue unless and until effectively restrained by an order of this court.
53. The land in question is within the metropolitan green belt within attractive countryside, some eight kilometres south west of the centre of Chelmsford. It is within what was formerly described as a special landscape area, and what is currently designated as a nature conservation area. These factors lead me to the conclusion that within the context of the claimant’s obligations to the community as regards the discharge of its duties to protect the environment, it is a matter of high importance that these enforcement notices are complied with. The arguments against the kind of development as proposed here are strong and planning permission on the evidence before me is unlikely to be granted in the foreseeable future. Contrary to the submissions of Mr Altaras, I consider that the inspectors considered the need to preserve the Green Belt at this location appropriately.
54. As Lord Bingham said in Porter at page 568, paragraph 10:
“Over the last 60 years, there has been ever increasing recognition of the need to control the use and development of land, so as to prevent inappropriate development and protect the environment. This is inevitably a sensitive process since it constrains the freedom of private owners to use their land as they wish. But it is a very important process, since control appropriately and firmly exercised enures to the benefit of the whole community.”
55. Considerations of common humanity are of course a critical part of the decision that I must make on this application, and including the educational needs of the children and the general hardship that may be inflicted on this family. However in my judgment the evidence in this case indicates that to a very large extent, if not exclusively, the defendants have been the authors of their own misfortunes, particularly bearing in mind that they left the two homes provided to them by the claimant and they abandoned the two previous pitches. I accept that for the reasons I have been given these options may not have been attractive to the defendants. However, there is an analogy to be found here, particularly as regards the two pitches, with accommodation provided by local authorities on housing estates. Many residents may prefer to live in other accommodation, free from noise and potential difficulties with neighbours, but that desire does not of itself invalidate a decision to offer accommodation on an estate.
56. Although I entirely accept the first defendant’s evidence about his wish to provide a safe environment for his family within striking distance of a good school, I am also sure that both defendants have used the opportunities provided by the planning system to the full in order to extend their stay on this land, and in the event they have prevaricated and delayed.
57. The claimant for its part, as I have already observed, has been both careful and receptive to their needs. They have provided two homes and two sites in the past. In relation to the current piece of land, proper opportunity has been afforded to the defendants to progress their planning applications and subsequent appeals, and the claimants have exercised great restraint in seeking this injunction. This is not a case where the claimant has been dilatory or has resurrected ancient and forgotten litigation; to the contrary, the claimant has been consistent in its attempts to enforce the law, but it has done so in a moderate and responsible manner, only coming to this court as an action of last resort. In my judgment the local plan is consistent with national guidance and it has been properly applied, and accordingly on the evidence before me I do not find that the complainant is at fault as regards its approach to the provision of sites within the borough. To the extent that funding, resources, research and competing priorities have permitted, the evidence reveals that sustainable decisions were taken so as to establish relevant criteria, alongside identifying need and granting some sites.
58. I have no doubt but that it is necessary to grant this injunction in order to restrain actual breaches of planning control. The relief sought is wholly proportionate in this case and by granting a six-month period for compliance, any residual concerns that I may have had as to the impact of this decision on the defendants and their children are wholly allayed. Although no local authority sites are available at the moment, that period will give the defendants a sufficient period in which to make alternative arrangements, with or without the assistance of the claimant. In this context, I have in mind the statutory obligations of the claimant if, as an extreme result, this family is rendered homeless.
59. I consider, therefore, that the injunction is appropriate and necessary to achieve the public interest sought and it will not impose an excessive burden on this family. In the absence of any submissions having been addressed to me on the subject of the terms of the order, I find that it is appropriately drafted and that the relief sought is apposite.