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Session 2002 - 03
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| 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) |
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE 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) ON THURSDAY 22 MAY 2003 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Steyn Lord Clyde Lord Hutton Lord Scott of Foscote HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEWrexham 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)[2003] UKHL 26LORD BINGHAM OF CORNHILL My Lords, 1. On 12 October 2001 the Court of Appeal (Simon Brown, Peter Gibson and Tuckey LJJ) allowed three appeals and dismissed one: [2002] 1 WLR 1359; [2001] EWCA Civ 1549. The dismissal of the fourth of these appeals (Hertsmere Borough Council v Harty) has not been challenged and that case need not be mentioned further. The appellants before the Court of Appeal in each of the three cases now before the House were Gypsies complaining of injunctions granted against them at first instance on the application of local planning authorities under section 187B of the Town and Country Planning Act 1990. For reasons given by Simon Brown LJ in a judgment with which the other members of the court agreed (paragraphs 60, 61) the Gypsies' appeals were allowed and the cases were remitted to the respective trial courts for redetermination. By leave of the House the three local authorities now appeal to it, challenging the guidance given by the Court of Appeal on the grant of injunctions under section 187B. The correctness of that guidance is the central issue in these appeals. 2. Although the Court of Appeal described the facts of these particular cases as of secondary importance only (paragraph 5), because the issue raised is one of principle, it is nonetheless relevant to record the facts in brief summary and to note factual developments in the period of 18 months since the Court of Appeal gave judgment. Mr Berry 3. Mr Berry bought land near Wrexham, within the Green Barrier, the Welsh equivalent of the Green Belt, in August 1994. The land is within the area of the Wrexham County Borough Council. His applications for planning permission to live on the land with his wife and six children were refused in October 1994, December 1995 and July 1999. He and his family were then living on a local authority site at Croesnewydd, but in September 1999 that site was closed and they were evicted. They transferred to another local authority site nearby at Ruthin Road but were subjected to violence at the hands of other residents of the site and in September 2000 moved to the land which Mr Berry owned. The local authority warned him that he had no planning permission to use the site in this way, and called on him to rectify this breach of planning control. His solicitor was instructed to say that Mr Berry would apply for planning permission. The local authority however resolved to issue an enforcement notice and seek an injunction. The application for an injunction was made on 26 October 2000. The hearing of this application was stayed to await the outcome of an application pending in the European Court of Human Rights (Chapman v United Kingdom (2001) 33 EHRR 399). On 12 February 2001 the application came before McCombe J, who granted an injunction requiring Mr Berry to remove himself and his caravans and vehicles from the site on or before 20 April 2001. Mr Berry's appeal against this decision was allowed by the Court of Appeal in the decision under appeal. He had by this time, following the grant of the injunction, again applied for planning permission which had again (July 2001) been refused. This refusal prompted the local authority to issue the enforcement notice authorised some 10 months earlier, which it did on 31 July 2001. Mr Berry appealed both against the refusal of planning permission and against issue of the enforcement notice. On 18 June 2002 (well after the decisions of the judge and the Court of Appeal) both appeals succeeded. The local authority's challenge to those decisions was rejected by Sullivan J in the Administrative Court but awaits a further hearing by the Court of Appeal. 4. There was evidence before McCombe J, to which he referred in his judgment (transcript, page 10), that Mr Berry had a history of cardiac illness. He had had a severe heart attack in about 1997. He remained under the care of a consultant cardiologist. His symptoms of chest pain were largely controlled by medication, but occasional emergencies required his admission to hospital. 5. No site was available for occupation by Mr Berry and his family within the local authority's area, except at Ruthin Road. Mr Searle and others 6. In May 2000 Mr Searle (whom it is unnecessary to distinguish from his co-respondents) bought land within the area of the Chichester District Council from a Mrs Collins for £14,000. She had previously applied for planning permission for residential occupation of the land but had been refused. The land was not within a Green Belt but was in an area where development was closely controlled. Mr Searle was told by the local authority that planning permission was needed to move a mobile home on to the land, and gave more than one assurance that he would not do so, but by 12 June 2000 he had moved two such homes on to the site. He requested a form to apply for planning permission and asked that enforcement action be deferred, but on 19 June the local authority resolved to apply for the grant of an injunction. On 22 June application was made and on 30 June an injunction was granted by Judge Barratt QC, who ordered that both mobile homes be removed forthwith. The Court of Appeal allowed Mr Searle's appeal against that order in the decision now under appeal. After that date, the local authority issued an enforcement notice and Mr Searle appealed against the issue of that notice and also against the refusal of planning permission. It seems that an inquiry was held, the outcome of which is unknown to the House. But Mr Searle and his co-respondents have not appeared to resist the local authority's appeal to the House or uphold the decision of the Court of Appeal. This appeal therefore raises the same issue of principle as those of Mr Berry and Mrs Porter, but whatever the outcome of the appeal there can in this case be no question of remitting the matter to the trial judge or re-imposing the injunction, which is understood to have been overtaken by events. Mrs Porter7. Mrs Porter has lived with her partner in a caravan on a site within the Green Belt at Iver in Buckinghamshire since 1985 when she bought the land. It is within the area of the South Buckinghamshire District Council. She has never had planning permission to live on the site, which her partner has used for breeding and dealing in horses. Applications for planning permission made by her in 1988, 1992, 1993 and 1997 were refused, and her appeals against these refusals were either withdrawn (1992, 1993) or dismissed (1998). Enforcement notices were issued in 1987 and 1993: she was fined for non-compliance with the earlier of these notices in 1988; her appeal against the latter was dismissed in 1994. In September 2000 a further application for planning permission was refused, but she appealed and following a public inquiry in January 2002 an Inspector, in February 2002, allowed her appeal and granted her planning permission limited to her personal occupation and requiring removal of her caravan as soon as she no longer needed it. The reason given by the Inspector was that
The local authority challenged the Inspector's decision in the Administrative Court before Judge Rich QC in September 2002, but unsuccessfully. Permission was given to the local authority to appeal to the Court of Appeal against his decision, and on 19 May 2003 the appeal was allowed. Meanwhile, however, the present proceedings had been initiated. The local authority provisionally decided, subject to legal advice, to seek an injunction on 13 January 1999. Application was duly made on 1 December 1999 and on 27 January 2000 Burton J granted an injunction requiring Mrs Porter to cease to use the land for the stationing of caravans on or before 27 January 2001. It was Mrs Porter's appeal against that decision which led to the judgment now under appeal before the House. It will be noted that planning permission had not been granted to Mrs Porter when Burton J and the Court of Appeal made their respective decisions. 8. Mrs Porter was born in 1942. There was evidence before the trial judge that she suffered from chronic asthma, severe generalised osteo-arthritis and chronic urinary tract infection. Her mobility was poor as a result of her osteo-arthritis and asthma. She suffered from depression and was taking painkillers, antibiotics, antidepressants and medication for her asthma. Her general practitioner considered that eviction from the site would be detrimental to her health, which has worsened over the last few years. 9. There were three residential Gypsy sites within the local authority's area, but all of them were full and had long waiting lists; there would be a delay of up to three years before a pitch was likely to become available. Planning control 10. Over the past 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 own 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. 11. It is unnecessary for present purposes to do more than identify the rudiments of the current planning regime, now largely found in the Town and Country Planning Act 1990. The cornerstone of this regime, regulated by sections 55-106B in Part III of the Act, is the requirement in section 57(1) that planning permission be obtained for the carrying out of any development of land as defined in section 55. Applications are made to, and in the ordinary way determined in the first instance by, local planning authorities, which are local bodies democratically-elected and accountable. The responsibility of the local community for managing its own environment is integral to the system. But the local planning authority's decision is not final. An appeal against its decision lies to the Secretary of State, on the merits, which will be investigated by an expert, independent inspector empowered to hold an inquiry at which evidence may be received and competing interests heard before advice is tendered to the Secretary of State. The final decision on the merits rests with the Secretary of State, a political office-holder answerable to Parliament. The courts have no statutory role in the granting or refusing of planning permission unless, on purely legal grounds, it is sought to challenge an order made by the local planning authority or the Secretary of State: in such event section 288 of the Act grants a right of application to the High Court. In addition, there exists the general supervisory jurisdiction of the High Court, which may in this field as in others be invoked to control decisions which are made in bad faith, or perversely, or unfairly or otherwise unlawfully. But this is not a jurisdiction directed to the merits of the decision under review. 12. The second crucial instrument of control provided by the Act is the enforcement notice, which local planning authorities are empowered to issue by section 172 where it appears to them that there has been a breach of planning control and that it is expedient to issue a notice. Once the notice has taken effect, it amounts to a mandatory order to do what the notice specifies as necessary to remedy the breach (section 173). Failure to comply may be penalised, on summary conviction, by a substantial fine, and on conviction on indictment by an unlimited fine (section 179(8)). Persistent non-compliance may give rise to repeated convictions (section 179(6)). The coercive effect of an enforcement notice may be reinforced by a stop notice, which the local planning authority may (save in the case of buildings used as dwelling houses) serve if they consider it expedient that any relevant activity should cease before the expiry of the period for compliance (section 183). Failure to comply may be visited with the same penalties as on non-compliance with an enforcement notice (section 187(2)), and persistent non-compliance may give rise to repeated convictions (section 187 (1A)). Again, however, the local planning authority's decision on enforcement is not final: a right of appeal to the Secretary of State lies against an enforcement notice (section 174). On appeal the merits of the planning situation may be fully explored and an application for planning permission may be made (section 174(2)(a)). In this instance also the control regime is entrusted to democratically-accountable bodies, the local planning authority and the Secretary of State. The role of the court is confined to determining a challenge on a point of law to a decision of the Secretary of State (section 289), and to its ordinary supervisory jurisdiction by way of judicial review. 13. The means of enforcement available to local planning authorities under the 1990 Act and its predecessors, by way of enforcement orders, stop orders and criminal penalties, gave rise to considerable dissatisfaction. There were a number of reasons for this, among them the delay inherent in a process of application, refusal, appeal, continued user, enforcement notice, appeal; the possibility of repeated applications, curbed but not eliminated by section 70A of the 1990 Act; and the opportunities for prevarication and obstruction which the system offered. In the case of Gypsies, the problem was compounded by features peculiar to them. Their characteristic lifestyle debarred them from access to conventional sources of housing provision. Their attempts to obtain planning permission almost always met with failure: statistics quoted by the European Court of Human Rights in Chapman v United Kingdom (2001) 33 EHRR 399, page 420, paragraph 66, showed that in 1991, the most recent year for which figures were available, 90 per cent of applications made by Gypsies had been refused whereas 80 per cent of all applications had been granted. But for many years the capacity of sites authorised for occupation by Gypsies has fallen well short of that needed to accommodate those seeking space on which to station their caravans. Sedley J alluded to this problem in R v Lincolnshire County Council, Ex p Atkinson (1995) 8 Admin LR 529 at 533, in a passage quoted in Chapman at paragraph 45:
The essential problem was succinctly stated in a housing research summary, "Local Authority Powers for Managing Unauthorised Camping" (Office of the Deputy Prime Minister, No 90, 1998, updated 4 December 2000):
14. The perceived inadequacy of local authorities' enforcement powers led them to seek injunctive relief, whether in a relator action in the name of the Attorney-General (as in Attorney-General v Bastow [1957] 1 QB 514, a case involving caravans but not Gypsies), or by invoking the general injunctive power of the court (as in Manchester Corporation v Connolly [1970] Ch 420), or, later, under section 222 of the Local Government Act 1972 as in Waverley Borough Council v Hilden [1988] 1 WLR 246 and Mole Valley District Council v Smith (1992) 90 LGR 557). Dissatisfaction with the efficacy of measures to enforce planning control however persisted, and in July 1988 Mr Robert Carnwath QC was asked by the Secretary of State to examine the scope and effectiveness of existing enforcement provisions and recommend improvements. 15. In his report ("Enforcing Planning Control", February 1989), Mr Carnwath acknowledged (page 21, paragraph 1.1) that the enforcement system had received a consistently bad press ever since the beginning of modern planning control in 1947. He recognised (page 24, paragraph 2.8) that
Mr Carnwath considered (page 41, paragraph 2.22) that the best approach lay in recognition of the injunction as a back-up to the normal statutory remedies, since
He favoured a formalisation and clarification, but not a significant extension, of the existing law, to give statutory recognition to this "useful weapon in the planning armoury" (page 41, paragraph 2.23). His recommendation on this matter was expressed in these terms (pages 85-86, paragraphs 10.1-10.3):
16. Legislative effect was given to Mr Carnwath's recommendation by section 187B, inserted into the 1990 Act by section 3 of the Planning and Compensation Act 1991, which became effective on 2 January 1992. The correct interpretation and application of this section lie at the heart of these appeals. It provides:
17. Since the enactment of the section the Department of the Environment has given guidance to local planning authorities on the exercise of enforcement powers which, although inadmissible to construe the section, throws light on what was officially understood to be its effect. Thus in circular 21/91 ("Planning and Compensation Act 1991: Implementation of the Main Enforcement Provisions", 16 December 1991) it was stated:
This advice was substantially repeated in circular 10/97 ("Enforcing Planning Control: Legislative Provisions and Procedural Requirements", 31 July 1997, paragraphs 5.5-5.10), with the substitution of "proportionate" for "commensurate" but again with reference to the "absolute" discretion of the court. In chapter 9 of Enforcing Planning Control: Good Practice Guide for Local Planning Authorities (1997), the Department of Environment, Transport and the Regions addressed the topic again:
The Court of Appeal decision |
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