Taunton Deane Borough Council v Packman and others

  Mrs Justice Sharp: 1.                  Taunton Deane 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 23/24th 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 submitted to the Council – including by John Holland in respect of plot 8 and John Smith in respect of plot 16. On 17 December 2004 the Council refused the applications. The occupants (including the Hollands and the Smiths) appealed against the Enforcement Notice under section 174 of the Act and against the refusal of planning permission under section 78 of the Act. 8.                  On 1 February 2005 the Council began these proceedings (against the first twenty nine defendants) seeking an interim injunction requiring the defendants to leave the Site and to remove their caravans. The proceedings were stayed however pending the outcome of the appeals. The First Inquiry 9.                  The appeals were considered at the first inquiry held on 7 to 10 June 2005. In his report dated 19 July 2005, when addressing the overall planning balance, at paragraphs 110 to 112, the Inspector took into account the “weighty consideration” of the likelihood that the appellants would have to be on the roadside in the event of their having to leave the Site but concluded there were “compelling” objections to the development on highway, landscape and residential amenity grounds; and that the most compelling objection in each of the appeals was the unacceptable harm to residential amenity and especially to the living conditions of the occupiers of No 6 Oxen Lane where the harm caused was sufficient, by itself to justify upholding the notice and dismissing the appeals. The Inspector therefore recommended the refusal of planning permission and the upholding of the Enforcement Notice, subject to a variation extending the time for compliance to 12 months. The Secretary of State agreed with the Inspector’s recommendations and in his decision letter of the 26 September 2005 dismissed the appeals. 10.              Plots 1, 7, 8, 9 and 16 were still occupied when the deadline for compliance with the Enforcement Notice expired. On the 22nd September 2006, three days before the deadline for compliance expired, further applications for planning permission were made by those occupying plots 1, 7, 8 and 16 (including therefore the represented defendants) which placed considerable reliance on the Office of the Deputy Prime Minister Circular 01/2006, Planning for Gypsy and Traveller Caravan Sites which had been published in February 2006 and post dated the local development plan. An application was subsequently made for planning permission for plot 15. 11.              The adult occupants of the relevant plots were as follows: plot 1, Steven and Charmain Packman (the 1st and 2nd Defendants); plot 7, Mary O’Neill (the 8th Defendant); plot 8, John and Tracy Holland (the 5th and 6th Defendants); plot 9 Anthony and Marie Dolan (the 30th and 31st Defendants) and plot 16, John and Sarah Smith (the 9th and 34th Defendants). 12.              On 7 March 2007, the Council refused all the applications and these refusals were all appealed. 13.              On 29 March 2007 the Council revived these proceedings and applied for an interim injunction to preserve the status quo. 14.              On 23 April 2007 an interim injunction was granted by HH Judge Seymour QC sitting a Judge of the High Court. It provided that all residential use of the Site should cease subject to a proviso which allowed the persons then residing on the Site to remain i.e. those on plots 1, 7, 8 and 16  (this did not cover plot 15). It also permitted other unoccupied caravans on the Site to remain, although they were not to be used. The Second Inquiry 15.              The second planning inquiry was opened on 3 December 2007 and sat for 6 days between then and 28 March 2008. The second Inspector considered appeals in respect of plots 7, 8, 15 and 16. The appeal in respect of plot 1 had been withdrawn. The occupants of plots 7, 8 and 16 (including therefore the represented defendants) were represented by an advocate and consultants, and stressed in support of their appeal that their plots were in the least sensitive part of the Site, being the lowest part and the part furthest away from the residential properties in Oxon Lane. 16.              By a decision letter dated 3 June 2008 the second Inspector dismissed the appeals. I refer in more detail to his reasons at paragraph 59 below. He accepted that if the appeals were dismissed then it would be highly likely that the families would be forced to leave the Site and would have to resort to itinerant short term camping by the roadside which would be extremely disruptive to home and family life. 17.              On 19 June 2009 a section 288 challenge to the second Inspector’s decision was dismissed. 18.              The occupant of plot 7, Mary O’Neill (the 8th defendant) had in the meantime left plot 7 (in the spring of 2008). 19.              At both the first and second inquiries, the appellants (including the represented defendants) asked for the grant of temporary planning permission pending the provision of suitable alternative pitches for them, which at that stage, the Council was not able to offer them. In each case, the Inspector concerned considered such a course would not be appropriate. The Third Inquiry 20.              Though the appeal in respect of plot 1 had been withdrawn, it remained occupied. In January 2008 a Lena Wilson bought and occupied plot 1, placing two caravans on it. On 14 February 2008 (before the second inquiry had been concluded) she applied for planning permission. On 27 May 2008 the Council refused the application for planning permission. Ms Wilson appealed. A third inquiry was held therefore on 7 and 8 January 2009. By a decision letter dated 20 April 2009 the third Inspector dismissed Ms Wilson’s appeal. The position by  June 2009 21.              By 19 June 2009 therefore there had been three inquiries which had found in the Council’s favour and upheld the Enforcement Notice, and a section 288 legal challenge to the decision of the second Inspector had been dismissed. 22.              Plots 1, 8, 9, 12, 15 and 16 nonetheless remained occupied: plot 1 by Lena Wilson, plot 8 by the Hollands, plot 9 by the Dolans, plot 12 by Steven and Charlotte Loveridge (the 26th and 23rd defendants) who had started to occupy it in early 2009, plot 15 by Leonard Small (the 32nd defendant) – Louise Small had left before June 2009 – and plot 16 by the Smiths. This occupation was in breach of the Enforcement Notice upheld by the Secretary of State after the first inquiry, and the deadline for compliance with which had passed nearly 3 years previously. The occupation of plots 1, 12 and 15 was also in breach of the injunction granted in April 2008. Further steps taken by the Council 23.              According to the evidence of Mrs Jackson, the Council thereafter adopted a pragmatic strategy of enforcement and sought to clear the upper part of the Site first. This was because its occupation was most harmful in planning terms; and clearing it would enable the Council to dig up the upper part of the access road to the Site preventing the reoccupation of that part of the Site.   24.              In pursuance of this strategy, on 22 July 2009 and 21 August 2009 the Council obtained two variations of the interim injunction granted in April 2007. The effect of the first variation was the prohibition of the further occupation of plot 1 and the stationing of any further unoccupied caravans anywhere on the Site.  The second variation prohibited the Dolans from occupying plot 9 after the 18 September 2009. 25.              By May 2010, all the occupants of the Site had left, apart from the Hollands and the Smiths who were still occupying plots 8 and 16.  Lena Wilson (plot 1) left the Site in July 2009; Leonard Small (plot 15) left in September 2009 when he was taken into custody; the Loveridges (plot 12) left in mid November after committal proceedings brought against them by the Council heard on 19 October 2009 before Mr Justice Sweeny resulted in the imposition on them of a sentence of 14 days imprisonment suspended on condition they left the Site within 60 days; as for plot 9, Mrs Dolan left the Site in April 2010 and Mr Dolan left in May 2010. The Council had by then resolved to bring committal proceedings against Mr Dolan, but he was arrested and remanded in custody before proceedings could be issued. 26.              As soon as all the occupants of the upper part of the Site had left, the Council cleared it: empty caravans, fencing and other paraphernalia were removed; the access road and hard standing beyond plots 8 and 16 was dug up and septic tanks were broken and set into the ground.   The current position 27.              The photographs and plan exhibited to Mrs Jackson’s witness statement of the Site as it now is, show what appears to all intents and purposes to be a large empty field, with a bank of earth/gravel or rough bund separating it from plots 8 and 16, where caravans remain in place with hard-surfaced access to Oxen Lane. The current occupants 28.              Plot 8 is now occupied by Tracey Holland who is 43 years old, and her daughters Krystle, who is 21 years old, Sophie Marie, who is 19 years old and Tracey Anne who is 15 years old and who is educated at home. John Holland occupies it at weekends. Sophie Marie’s husband Luke Steven also lives on plot 8. Plot 16 is occupied by John Smith, the 9th Defendant, who is 33 years old, Sarah Jane Smith the 34th Defendant who is 36 years old and their three children – Jimmy Dean who is 12 years old, Adam Lee who is 7 years old, and Riley James who is under a year. John Smith suffers from asthma. Jimmy Dean and Adam Lee attend local schools. 29.              It is not suggested that the personal circumstances of the Holland and Smith families have changed materially since the second inquiry, where they were considered in detail, as I have said. Alternative Accommodation 30.              There is an existing gypsy site at Otterford in the Council’s area (the Otterford site). The leasehold of the Otterford site is owned by the Council and it is managed by the County Council. The Council is currently negotiating to buy the freehold. The Otterford site has 20 pitches for use by permanent residents. The Council also proposes to extend the Otterford site to provide 6 further pitches which will be available to residents on a temporary, 6 month basis. Water, sewerage and electricity are available to the Extension Site, which is suitable for the stationing of caravans. Plans and photographs of both the Otterford site and the Extension Site (which appear from the plan not to be contiguous) are in evidence. 31.              At the third inquiry, the Council offered to allow Lena Wilson to put her caravan on the Extension Site until new pitches were constructed. Her representative challenged its suitability and the third Inspector visited it. He found the Extension Site would provide her with suitable alternative accommodation (see paragraphs 37 and 38 of his decision letter dated 20 April 2009) despite her objection that it was “a tip” and used as a scrap yard. At the hearing of the application for a variation of the injunction in August 2009, Mr Justice Blair accepted that the Extension Site offered suitable alternative accommodation for the Dolans (subject to the provision of water, electricity and sewage services which the Council undertook to and did then provide) though the Dolans did not wish to move there. Mr Dolan moved onto the Extension Site, though Mrs Dolan and the children moved elsewhere. 32.              On the 12 April 2010 and the 26 May 2010, Mrs Jackson visited plots 8 and 16 with Ann Dunford, an enforcement officer and the following options were offered to the Hollands and the Smiths. Through Mrs Jackson, the Council offered two existing permanent pitches on the Otterford site which the Council said they could occupy on a permanent basis.  They were also offered pitches on the Extension Site (as previously offered to Lena Wilson and the Dolans). In addition, the Council said it would be prepared to assist both families to buy suitable alternative land. The Council has a sum of £150,000 earmarked for the purchase of land for the provision of gypsy residential sites, and would assist in the purchase of suitable land and the obtaining of planning permission. The intention would then be to sell the land on to gypsy families. Both families were told the Council would consider any land they suggested for purchase in this way. 33.              Mrs Jackson said the Council would be seeking the clearance of the complete site; and if the families did not move of their own accord, the Council would apply to vary the injunction to require them to leave. Both families were however adamant that they were not prepared to move to the Otterford Site.   34.              On 16 June 2010 Ms Jackson wrote to the Hollands and to the Smiths repeating the offer of permanent pitches at the Otterford site. She asked to be notified within the week if they intended to accept the offer (though stating that they would not be expected to move within such a short time scale). She also said if the offer was not accepted, the injunction proceedings would be reinstated and an order would be sought permanently excluding them from living at the Site. Mrs Holland then telephoned the Council and asked for an extension of time in which to respond as she wished to speak to her planning consultant. 35.              On 23 June 2010 the Council received an application for planning permission made by the Hollands and the Smiths (in a single application) for permanent planning permission for plots 8 and 16 (and it is said by Mr Richard Langham on behalf of the Council, that it is to be inferred that the timing of this latest application – a matter of days after the offers made by the Council, is not coincidental). It may be the application is presently invalid, for reasons which are not material, but if made valid, Mrs Jackson says she expects the Council to refuse it. In an email to the Council, the families’ agent asked the Council not to take enforcement action as he believed the application had a chance of success because the works carried out on the Site “preclude further occupation by other families”. 36.              On 2 July 2010, the needs of both families were reassessed by the Council. 37.              When the Council’s Planning Committee first resolved to take injunction proceedings at a meeting on 16 December 2004, a Steering Group was formed to oversee the conduct of these proceedings and has met regularly since. On 5 July 2010 a report by Mrs Jackson (which included the reassessment of the needs of both families) recommended to the Council’s Planning Committee that this present application for an injunction should be made. That report was considered on 21 July 2010 at a meeting of the Council’s Planning Committee.  The Committee considered the current position, including the offers made by the Council, the recent planning application and the updated needs assessment and concluded that, despite the suggestion that the recent works precluded further occupation by other families, the Council could not physically secure the land, that the current arrangements were temporary; and the families had been offered alternative permanent sites at Otterford. It resolved to take injunction proceedings to secure the removal of the remaining families on the Site; and on 20 August 2010, the Council issued this application for relief. 38.              On 29 August 2010 the Secretary of State for Communities and Local Government announced that he intended to replace Circular 01/2006 with “light touch guidance”. 39.              On 1 September 2010, Dr Angus Murdoch of Murdoch Planning, the planning consultant for the Hollands and the Smiths, sent an email to the Council which said as follows: “You may be aware that I have submitted an application for planning permission in relation to the 2 pitches occupied by my clients and that this should be determined by 7th October 2010. In my view, this application has at least reasonable prospects of planning permission for reasons included in the Design and Access Statement and previous emails…Given the above, I would be grateful if you would agree to adjourn the injunction application until the planning situation on the site has been resolved…”. 40.              The Design and Access Statement submitted by Dr Murdoch dated June 2010, as its introductory paragraph says, “details the Design and Access issues” for the planning application for plots 8 and 16 (wrongly described as plot 18). In summary, it is said the Site has changed significantly since the Inspector’s decision letter of the 3 June 2008 in ways that suggest that planning permission is now appropriate: the local planning authority has recently cleared 14 of the 16 plots and erected an earth bund preventing reoccupation of the Site. Issues of precedent, highway safety and impact on amenity of neighbouring occupiers have, it is said, thereby been eradicated by the  local planning authority and the proposal before the local planning authority complies with the development plan policy applicable to the application (H14) so far as it is consistent with Circular 01/2006. 41.              In her witness statement Mrs Jackson says the Council does not agree to the adjournment. It is said nothing has changed since the second and third inquiries, and the Council considers the planning position to be completely clear. There is no need for the matter to be adjourned, and there is no proper basis for allowing either family to remain, especially as alternative pitches are now available. The Council considers it is necessary and expedient for an injunction to be granted and it wishes to complete works to secure compliance with the Enforcement Notice. It could forcibly evict the Hollands and the Smiths, but would very much prefer to avoid taking direct action of this nature, having secured compliance in relation to the other plots without coercion and by these proceedings. The offers already made of pitches on either the permanent Otterford site or the Extension Site remain open. 42.              I am therefore invited to grant an injunction the effect of which will be to require the Hollands and the Smiths to leave the Site. This can be done either by deleting those parts of the existing order (paragraphs 2c and 2d) which gave them the benefit of the proviso referred to in paragraph 14 above, or by discharging the interim injunction and replacing it with a new order which has that effect. Since they are now adult occupiers of the Site, the Council also asks permission for Krystle Holland, Sophie Marie Holland and Luke Steven to be joined as the 35th to the 37th defendants respectively, which I grant. The parties’ submissions in summary 43.              Mr Langham submits that this is about as strong a case as there could be for the grant of relief; and that it is now time for the Enforcement Notice to be fully complied with. He submits the breach of planning control in this case in relation to plots 8 and 16 is self-evidently flagrant and prolonged. The deadline for compliance with the Enforcement Notice expired almost 4 years ago. 44.              While the hard surfaced access from Oxen Lane remains, the Site remains vulnerable to re-occupation. He further submits there is no real prospect of planning permission being granted. The question whether planning permission should be granted for use of the Site by gypsy caravans has been exhaustively considered by the Inspectors. Plots 8 and 16 were included in the appeals considered in the first inquiry. They were also considered at the second inquiry which considered only the four plots at the bottom of the Site. A major part of the appellants’ case was that, on their own, these plots did no material harm to planning interests. The second Inspector considered this case and the implications of C01/2006 and refused planning permission in circumstances where the Council was not able to offer alternative sites to the appellants, meaning they would have to resort to itinerant camping by the roadside. A section 288 challenge to his decision was dismissed. 45.              Mr Langham referred me to South Cambridgeshire v District Council v Flynn [2006] EWHC 1320 especially paragraphs 68 and 119-120, where it was held that faced with a recent adverse decision of the Secretary of State, the prospects of a different planning decision must be real; and that the court will only entertain a submission that there is such a real prospect if some material change in circumstances has occurred. There have been no material changes he says since the second decision letter which assist the occupants of plots 8 and 16. There have however been two changes he submits which assist the Council: first, the grant of additional planning permission for gypsy sites, and second, the availability of alternative sites for the defendants. The current planning application he says is merely an attempt to delay the inevitable. 46.              A permanent pitch on an existing local authority site is as much as any local authority will ever be able to offer a gypsy. Even if the sites are not acceptable to the Hollands and the Smiths, for the reasons given by Mrs Holland (see paragraph 48 below) homelessness, and the inevitable hardship this will involve, is not the inevitable consequence of the order sought by the Council.   47.              Mr Offer who appears on behalf of the represented defendants, accepts that the existence of suitable alternative pitches would be a powerful factor in favour of the injunction sought, but says it is disputed by the represented defendants that the pitches offered are suitable. 48.              He relies on what was said in a witness statement from Mrs Holland produced at the hearing before me (on behalf of both families) which dealt with the offer of a pitch on the Otterford site, and which he submits gives rise to a triable issue of fact which is not capable of summary determination.  She says the Otterford site is not a suitable alternative because of the presence of Mr Dolan with whom it is said both families had had a run in when he used to live on the Site, who was an alcoholic with a bad temper, and who had made threats against them as a result of which they feared for their safety. In addition, it was said the Otterford site has a scrap metal yard operating from the site, is in a “right state” and not a place where either family would want to bring up their children. She also said that persons other than gypsies and travellers were accommodated at the Otterford site – and it was believed there would be significant friction as a result of their different cultures and backgrounds. 49.              Mr Offer accepts that the represented defendants’ continued occupation of the Site over many years has been in breach of planning control and the criminal law, and accepts that a flagrant and deliberate breach, persisted in over a long period is an important element in the Court’s assessment. But he submits care must be taken not to treat this as an automatically decisive factor. He also referred me to the decision of Stadlen J in Brentwood Borough Council v Ball & ors [2009] EWHC 2433 where an injunction was refused despite the existence of enforcement notices which had been appealed. 50.              He also accepts that the planning history can properly be given substantial weight, but that it is not necessarily decisive since it is for the court to make its own assessment of the individual cases before it “in all the circumstances” and “in the round” (see what is said in Porter at paragraphs 29, 30 and 52).  51.              Mr Offer accepts in addition that in this case, the represented defendants will have to establish a real prospect that a different planning decision will be made when the final hearing is heard, but says in the context of what is, in effect, an application for summary judgment, it is sufficient for them to show there has been a material change in circumstances making the prospect of a different decision properly arguable. And he says, in this case, there is a real prospect of a different planning decision in reliance on what is said in the Design and Access Statement referred to in paragraph 40 above. 52.              He submits the appropriate course in all the circumstances is to adjourn the application for the filing of further evidence, including expert evidence on the suitability of the Otterford site, and on the prospect of a different planning decision. Discussion 53.              I have considered the various factors that arise in this particular case and in an application of this nature, and which are referred to by Simon Brown LJ in the passage from Porter cited above. 54.              In my view the following factors (on which the parties’ written and oral submissions focused) are particularly significant in this case and point very strongly towards the grant of an injunction. 55.              First, the flagrancy of breach. The breach in this case is in my view flagrant and prolonged; in the words of Lord Scott in Porter at paragraph 102 (see paragraph 56 below), there has been “a continuous and persistent disobedience to the law”. The represented defendants have failed to comply with the Enforcement Notice within the extended time for compliance. They have remained in occupation for a period of 4 years since the deadline for compliance with the Enforcement Notice expired despite the fact that there have now been three separate planning inquiries the decisions in which either upheld or did not override the Notice, and despite the fact that the decisions in each case in which they were concerned, including by the Secretary of State and in the section 288 appeal have gone against them.  56.              The materiality of the flagrancy of the breach to the decision of the court is emphasised by both the Court of Appeal and the House of Lords in Porter. See especially Simon Brown LJ quoted by Lord Bingham at paragraph 20 and what was said by Lord Scott in Porter at paragraph 102:  “102. …In many, perhaps most, cases the hardship prayed in aid by the defendant will be of insufficient weight to counter balance a continued and persistent disobedience to the law. There is a strong general public interest that planning controls should be observed and, if not observed, enforced. But each case must depend upon its own circumstances.” 57.              I do not find helpful a comparison between this case, and that of Balls on which Mr Offer relies. Obviously, each case turns on its own facts and on which the balance between the public and private interests depends. In my view the facts in this case are very different to those in Balls. To take two examples. In Balls when considering flagrancy, the court was principally concerned with the circumstances of the defendants’ arrival on the site, and whether it was blameworthy, rather than a very long period of occupation in breach of an enforcement notice. In addition, Stadlen J in Balls considered that an outstanding appeal against the refusal of planning permission in that case had a real prospect of success. That is not my view here (see paragraphs 64 to 66 below). 58.              Second, the planning history. As I have said, the planning merits of allowing occupation of the Site have been considered in detail by three inquiries (including one where the decision was by the Secretary of State) and on each occasion the Enforcement Notice has been upheld/not overridden. I refer in particular to the second inquiry where very careful consideration was given to the planning merits and to the individual personal circumstances of the represented defendants, and the hardship and the interference with their Article 8 rights that leaving the Site would entail. The second Inspector analysed the evidence at length, he carefully considered the public and private interests which arose, and gave detailed and careful reasons for deciding that the appeal against the refusal of planning permission should be dismissed. A section 288 appeal against his decision was dismissed in June last year. 59.              Significantly, the second Inspector considered four appeals against the refusal of planning permission for the four plots at the lower end of the Site (where plots 8 and 16 are situated).  He considered the implications of the relevant development plan policy and Circular C01/2006. He was obliged to give individual consideration to each of the four appeals and it would have been within his power to grant planning permission for each or all of the plots. He specifically considered the position if planning permission were to be limited to an individual plot on its own at the lower end of the Site. He said this (Greenacres is the name given to the Site): 54. The occasional small caravan in a private garden or in the corner of a field is typical of the countryside. Circular 1/2006 makes clear that gypsy sites, and thus caravans, are acceptable in principle in the countryside. Subject to suitable hedgerow planting on land within each appellants control and conditions limiting the number of caravans to 2 on each plot, I conclude that none of the appeal plots on its own would result in material harm to the landscape. Where the appeal plots are alongside each other (i.e. 7 and 8, and 15 and 16) the caravans are reasonably grouped together and new planting along the open boundaries would be mutually beneficial. But the pairs of plots each side of the central track create a wide spread of caravans. Cumulatively, the 4 appeal plots result in an adverse impact, primarily because of the spread of caravans across a large area and there is the possibility of larger and more visible units, over time, if the appeals were to be allowed. I therefore conclude that each individual plot in isolation would not result in conflict with landscape policies of the development plan (SP policy 5 and LP policy EN12), but that there would be conflict from allowing more than 2 pairs of parallel plots.” “64. Firstly, precedent arises in relation to the remaining appeals before me if I were to allow any one of these 4 appeals. There is no material difference in planning terms between the 4 plots. Secondly, considerations of precedent and cumulative impact arise in relation to the other 12 plots at Greenacres.” “65. In relation to highway matters, it would clearly be difficult for the Council to resist a series of separate applications over a period of time for residential occupation of other plots at Greenacres given my assessment and that of the Council that any one plot would not materially increase the use of the dangerous junction. A blinkered approach looking only at the individual merits of each application in isolation, would give rise to the possibility that on highway grounds 16 plots could be permitted. But the Secretary of State clearly found that a proposal for 16 plots was unsatisfactory because of the highway dangers created at the Oxen Lane/Greenway junction and I have found that it remains a dangerous junction at which a material increase in traffic should be avoided. Allowing any one of these appeals would make it very difficult for the Council to resist on highway grounds any further individual applications for family occupation on other plots at Greenacres.” “66. In relation to landscape, I have identified landscape harm from the cumulative impact of the 4 appeal plots, but the additional landscape harm from any one additional plot would be marginal, making it hard for the Council to resist further applications on individual plots even though, over time, the landscape impact of a number of such developments would be seriously harmful.” “67. In relation to residential amenity, it was accepted by the appellants that plots close to or abutting the garden of 6 Oxen Lane would be harmful to the residential amenity of that property. I have found that the 4 plots before me neither individually nor cumulatively would be harmful in this respect, but I have no reason to disagree with the assessment made by the previous Inspector and First Secretary of State that 16 plots were substantially harmful to residential amenity. At what point proximity to 6 Oxen Lane would become harmful would be for the decision maker in the future, but such a judgement is made particularly difficult in this situation by the absence of any physical differences between the plots, other than their proximity to that property.” “68. I recognise that each appeal should be decided on its merits, but for the reasons given below I consider that allowing any of the appeals would be likely to result in further applications on the other plots. Firstly, there are 12 other plots of land at Greenacres not covered by these appeals and not in the control of any of the present appellants. All these plots were the subject of an application for residential occupation by their owners in 2005. Since the dismissal of the previous appeal, there have been 2 further applications on one of those plots and a long standing unauthorised occupation of another plot. All the plots are understood to be in the ownership of different gypsy families. Given the general shortage of gypsy sites in the region, many gypsy families would like to secure a residential pitch at Greenacres if there was any prospect of doing so. There is little to distinguish between the planning merits of different plots at Greenacres, other than the proximity of 6 Oxen Lane.” “69. In the above circumstances, allowing any of the appeals on a permanent basis would be highly likely to result in applications for residential occupation of other plots which it would be difficult for the Council to resist (when considered only individually) on highway or landscape grounds. But the greater the number of plots that are occupied the greater would be the cumulative harm to highway safety and the landscape. In my view, this is a situation where the precedent effect of an appeal decision and the cumulative consequences weigh significantly against allowing any of the appeals, particularly as the Secretary of State concluded that occupation of 16 plots at Greenacres was unacceptable.” “70. The appellants seek to discount the prospect of further successful applications on other plots because of the injunction which the Council has already obtained for the whole of Greenacres. The residential occupation of the other plots would be in breach of that injunction. I accept that the existence of the injunction may well deter owners of other plots from residential occupation of their plots in advance of obtaining planning permission (although one plot has been re-occupied since the injunction was obtained). But I do not accept that the failure to be in occupation at the time any such application were made would necessarily significantly alter the planning balance of considerations to be addressed. Any such applicant might still be able to demonstrate a pressing need for a pitch, even if they were not in occupation (such as living temporarily in unsuitable bricks and mortar accommodation or doubling up on another family’s pitch). To conclude otherwise would be to accept that gypsies have little chance of success in the planning system unless they have already occupied the land. I do not accept that proposition. Furthermore, although the Courts may take a more robust view about enforcing an injunction against those who occupy land in defiance of an injunction compared with those already in occupation when the injunction is obtained, I cannot assume that an injunction would necessarily be immediately enforced by the Courts and the Council would still need to adopt a proportionate response in the light of the particular circumstances at the time. Accordingly, I do not regard the existence of the injunction or the extant enforcement notice as setting aside the real prospects of additional applications being triggered by any of these appeals being allowed, the difficulty of the Council in resisting any such applications on an individual basis and the cumulative harm to highway safety, landscape and, potentially, residential amenity that would arise.” “71. The appellants highlight a number of recent appeal decisions where planning permissions were granted for a gypsy site despite previous appeal decisions rejecting such proposals. In some of those cases the scale of the development had been reduced and the appellants had control of the rest of the land the subject of the earlier dismissals which could then be the subject of conditions limiting the scale of development that would occur. That is not the case here. The individual appellants have no control over the other appeal plots or the other plots at Greenacres. The appeal plots represent only a part of a much larger site served by the same access and with the same character.” “95. I accept that if their appeals are dismissed then it is highly likely that the families would be forced to leave this site as a result of the current injunction and extant enforcement notice. They would have to resort to itinerant short term camping by the roadside which would be extremely disruptive to home and family life.” “97. Taking each appeal plot individually and in isolation, I accept that there would be no landscape harm and no material difference to traffic using the dangerous junction of Oxen Lane with Greenway. But allowing any one plot would create a strong precedent for allowing the other appeals and make it very difficult for the Council to resist applications on the other 12 plots at Greenacres. For the reasons already given, I consider that this precedent effect and the cumulative harm that would arise, weigh considerably against allowing any of the appeals.”  “99. Weighing in favour of each of the 3 appeals by gypsy families are the following factors: the need for additional sites for gypsies in Taunton Deane and the wider area; the lack of any available alternative lawful sites; the lengthy timescale over which this need is likely to be met through allocations made in DPDs; and the significant disruption to home and family life that would arise from being forced to move from this site and especially the disruption to the education of the children currently attending school.” “100. These matters pull strongly in opposite directions and are hard to compare. The circumstances of each family are broadly similar in planning terms, albeit that Ms O’ Neil has the most children. The appellants did not seek to differentiate between the merits of each of their appeals or indicate a priority of need and the expressed preference was to stay together. It would therefore be arbitrary and unfair to choose any one of the 3 remaining appeals to determine first. In any case, whilst any one plot would be acceptable in highway and landscape terms, I consider that the precedent effect, firstly, in relation to the remaining appeals and, secondly, in relation to the remaining plots at Greenacres is so strong as to outweigh those factors in favour of allowing any one of the appeals. In practice, I can sensibly and fairly only consider these 3 appeals together. On balance, I consider that the factors that weigh in favour of these appeals individually and collectively, do not outweigh the harm that I have identified in relation to highway safety, landscape, precedent and cumulative impact and therefore permanent planning permissions are not justified.” “101. Having come to that conclusion, I need to address whether any temporary permissions should be granted. Temporary permissions are suggested in Circular 1/2006 (paragraphs 45 and 46) where new sites are likely to become available at the end of any temporary period. For the reasons already given, I consider that 5 years would be necessary for alternative sites actually being available to these appellants through the development plan process. A 3 year temporary permission would mean that the Council would probably be faced with applications for further temporary permissions and the Circular does not contemplate a succession of such permissions.” “102. The circular notes that temporary permissions granted in such circumstances should not be regarded as setting a precedent for the determination of any future applications for full permission for the use of the site. But my concerns about precedent still apply at Greenacres. The owners of other plots would be likely to seek similar temporary permissions. Whilst a temporary permission means that the harm that would arise would not continue indefinitely, there would still be harm here. The landscape impact of 3 plots could not be mitigated for most of the 5 year period by new planting and it would be unreasonable to require for a temporary period the investment in the significant landscaping that would be necessary. The highway danger exists every time the junction is used. On balance, I consider that the needs of each of the appellants and other favourable factors are outweighed by the resulting precedent and the substantial cumulative harm that would arise from additional temporary permissions on other plots at Greenacres.” “103. As regard the submissions made relating to Article 8 of the European Convention on Human Rights, I recognise that dismissal of the appeals would result in an interference with the home and private life of all the occupiers of the appeal plots. However, that interference must be balanced against the legitimate aims stated in Article 8, which encompass the protection of the environment and public safety. In my view, the objections to residential use are serious ones and cannot be overcome by granting temporary planning permission or by the imposition of other conditions. The public interest can be safeguarded only by dismissal of the appeals. In all the circumstances, I consider that dismissal of the appeals is necessary in a democratic society in furtherance of the legitimate aim stated. They do not place a disproportionate burden on the occupiers of the appeal plots. I therefore consider that dismissal of the appeals would not result in violation of their rights under Article 8 of the Convention.” “104. I have therefore concluded that all the appeals should be dismissed.” 60.              There has therefore been an exhaustive consideration of the planning position, including whether temporary permission would be warranted, and a recent reasoned clear and careful decision by the second Inspector, which in my view provides cogent reasons for the refusal of planning permission. 61.              After the first and second inquiries, planning permission was refused even though there was at that stage no alternative accommodation on gypsy sites for the individual appellants. In particular, the personal circumstances of the represented defendants, and any hardship having to leave the site may cause were considered by the second Inspector (and indeed the first Inspector).  Both Inspectors determined they did not justify the grant of permanent or temporary planning permission, knowing that without it the families would have to leave the Site, and as no alternative accommodation could be offered by the Council, the families would therefore have to camp on the roadside. 62.              The Council itself has scrutinised the position; its decision to authorise this present application was made following the second inquiry and its own recent assessment of the personal circumstances of the Hollands and the Smiths, to which it is not suggested there has been any material change. 63.              The fullest consideration therefore has been given to the personal circumstances of the represented defendants. The relevant issues in the public interest in the enforcement of planning controls and the private interests of the represented defendants have been carefully considered and weighed. And on each occasion it has been concluded for cogent reasons, after considering all the material factors, that the represented defendants’ occupation of the Site should be ended in circumstances where it was known the result would be itinerant camping by the roadside, with the disruption and hardship this would cause them. 64.              In all the circumstances, I consider the planning decisions already taken should be accorded the full measure of judicial respect (as opposed to judicial deference) an approach explained by Auld LJ in Davis particularly at paragraphs 42 to 49. 65.              A real prospect that the current application for planning permission might succeed would obviously be a factor pointing in favour of the refusal of relief, or at least in favour of an adjournment, but in my view there is no such prospect. There is simply nothing raised in the current application which shows even arguably that there has been a material change in circumstances or which makes the prospect of a different decision possible, let alone properly arguable. In short, in reality it raises nothing new. 66.              The second Inspector considered whether permission could be given for the plots (individually and collectively) at the lower end of the Site, in the context, as I have said, of the submissions made by the represented defendants that their plots were in the least sensitive part of the Site, being the lowest part and the part furthest away from the residential properties in Oxon Lane. It is worth reiterating in this context one sentence from paragraph 100 of the second Inspector’s reasons which I have already set out: “In any case, whilst any one plot would be acceptable in highway and landscape terms, I consider that the precedent effect, firstly, in relation to the remaining appeals and, secondly, in relation to the remaining plots at Greenacres is so strong as to outweigh those factors in favour of allowing any one of the appeals.” The precedent position remains as forceful now, as it was then. H14 and Circular 01/2006 were considered by the second Inspector. The fact that the represented defendants’ planning consultant reaches a different conclusion to the second Inspector is nothing to the point: it does not demonstrate a material change in circumstance. It seems to me that the planning position is clear and final.    67.              I am not persuaded that expert evidence on the planning issues which have been raised in the new application for planning permission would or could add anything material for the purposes of this application, even if it was appropriate for such evidence to be received. In my view, to accede to the application for an adjournment would merely delay the inevitable and waste both time and costs.   68.              Nor do I consider it necessary for there to be further evidence on the suitability of the permanent alternative accommodation offered on the Otterford site before determining whether an injunction should be granted. I note that the Hollands and the Smiths lived on the Site in proximity to the Dolans for nearly 4 years, and on two occasions during that time sought planning permission to allow them to remain there on the basis it was a suitable place for them to live. I also note that Mr Dolan is living on the Extension Site and the Hollands and the Smiths have been offered pitches on the permanent Otterford site, as well as on the Extension Site. 69.              Be that as it may, it is the fact that alternative accommodation is available.  Accepting what Mrs Holland says about Mr Dolan and her other concerns about the Otterford site, the fact that alternative accommodation is available, albeit less than satisfactory from the point of view of the represented defendants, means this is not a case where the grant of an injunction will inevitably lead to homelessness. I have given careful consideration to the disruption and hardship the represented defendants will be caused if they are required to leave the Site. But in my view, these difficulties must be compared with those of homelessness, and are not such to outweigh the factors which weigh very heavily in favour of injunctive relief in this case.   70.              I have to determine whether taking into account all the relevant factors it is just and proportionate to grant the relief asked for. In my view, whether the various factors are looked at individually, cumulatively or “in the round” there are clear and powerful reasons to grant an injunction now to assist the Council in securing complete compliance with the Enforcement Notice. 71.              I am further satisfied, having regard to the history of this matter that the breach in this case will continue “until effectively restrained by the law and that nothing short of an injunction will provide effective restraint” a factor which itself points “strongly to the grant of injunction” (see Lord Bingham in Porter at paragraph 29). I also consider the Council’s position of endeavouring to secure compliance by means of these proceedings, rather than taking the step of forcible eviction, to be an entirely reasonable one. I should add that I would be prepared to contemplate committing the represented defendants to prison if required to do so. 72.              Accordingly, I grant the relief that is asked for. The parties may make further submissions as to the precise terms of the injunction, if they cannot be agreed.  [1] Sophie Holland and Luke Steven, the 36th and 37th defendants are not in fact represented, but they have been served with these proceedings and for ease of reference they are also included.