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Timing confirmed as critical when obtaining an injunction. Basingstoke and Deane Borough Council v Eastwood and MMT

In January, David Lintott published a legal comment on the importance for local authorities of taking action before gypsies move on to land when the court comes to consider whether they should be allowed to remain on the land pending a determination of any planning application (BDBC v Thompson [2018] EWHC 0011).

In the analysis of this new case, which also involves Basinkstoke and Deane Borough Council, he identifies further considerations that local authorities should take into account when dealing with a similar issue.

In this new case, the Council were successful in resisting an application by MMT to vary an injunction obtained pursuant to s.187B of the Town and Country Planning Act 1990, to permit his and his family's residential occupation of a site in the countryside. An application for planning permission had been made by MMT, who claimed to have moved on in ignorance of the injunction.

This case was heard shortly after the case of BDBC v Thompson [2018] EWHC 0011 in which a similar application was dismissed.

The Court summarised the principles relevant to such an application as laid down in the cases of South Bucks District Council v Porter [2003] 2 AC 558, Mid Bedfordshire District Council v Brown [2005] 1 WLR 1460 and Broxbourne Borough Council v Robb and Others [2011] EWCA Civ 1355 and BDBC v Thompson [2018] EWHC 0011 the Nickin J. held at paragraphs [36]-[43]:

(1) He was not satisfied on the balance of probabilities that the Applicant had moved onto the land (in any meaningful sense) before the grant of the High Court Injunction. If he had done so then he would have an argument that the status quo favoured protection of his continued occupation.

(2) He could not reach a decision on the evidence as it stands as to when the Applicant and other family members became aware of the injunction but did not need to resolve this point in order fairly to determine the application because the dispute was only over a relatively short period of time. On the Applicant's evidence, he and his family had notice of the High Court Injunction on 4 January 2018 and would have been aware from that point (a) that their original occupation of the land had been in breach of the High Court Injunction; and (b) that their continued occupation of the land was in breach as well.

(3) The Applicant's prospects of success with his planning application were remote and certainly not of an order that would provide "a factor of real weight" when considering the overall balancing process.

(4) It was plain that the Applicant's (and his family's) Article 8 rights were engaged. However, the extent of that interference was limited. First, because the occupation of the land for residential purposes was never lawful. Second, the period of occupation was only a matter of weeks.

(5) In Thompson, HHJ Bidder QC held (asking himself similar questions) held:

"[144] The hardship to the defendants themselves, more significantly to their families and particularly their children, who have at present no alternative site to go to and will be forced on to the side of the road again, is obvious. However, that was their situation before the injunction was granted.

[145] This is not a case, I accept, where any of the children have ill-health. None of the families has lived for very long on this site. The Council had no opportunity before making the application for the injunction to assess welfare issues because there was no one in residence.

[147] I have reviewed the interests of the children. It is very clear that stability is a pressing need in their lives and their best interests lie in a stable base, and continuous schooling and healthcare"

(6) In the present case, as a general proposition, the best interests of, particularly, the 2-year-old nephew of the Applicant would be promoted by his being able to live in a stable environment but that was the status quo for this 2-year-old up until the 25-26 December 2017 when, on the Applicant's evidence, he moved, with the rest of his family, onto the plot.

(7) He did not accept the criticism of the Claimant for having failed to carry out a detailed assessment of the welfare needs of the relevant children. Mr Sims did consider this issue (as explained in his witness statement). His conclusion was not obviously wrong or flawed. There was a complaint that he failed to obtain evidence. In that context, it was important to note that (a) no-one was occupying the land when the original order was sought; and (b) the Applicant had not provided the Claimant with any information about the children to enable it to carry out any more detailed assessment and so it is impossible to make any assessment of what it is said Mr Sims would have obtained had he carried out the investigation that it is said he should have carried out.

(8) The evidence did not establish that MMT's mother's health would either be improved by remaining on the plot or made worse by being required to leave.

(9) Turning finally to the overarching principle that court orders are to be respected and obeyed, the case did not have an element of deliberate defiance that was present in Brown. But the absence of this factor did not render the overall principle any less cogent. In this case, the Court made an order, at a time when the land was not occupied, that it was not to be used for residential purposes. That order was made to protect the proper planning process. There was no suggestion that that order was not properly made. The Applicant and his family took up residence on the land after the making of that order. Even removing the element of defiance, the policy considerations that require the enforcement of court orders identified by Mummery LJ in [26] and [27] were just as compelling in this case. In his judgment, they were weighty matters in the overall assessment of whether the Court should grant a variation of the High Court Injunction.

(10) Balancing all these factors, he was satisfied that it would not be appropriate to vary the High Court Injunction to enable the Applicant and his family to continue their occupation of the land.

You can find a copy of the transcript of the High Court Judgment here and a copy of the judgment in BDBC v Thompson here.

David Lintott acted for the successful Respondent local authority in both cases. He regularly represents local authorities in a wide range of housing and planning matters. For more information please contact 020 7242 4986 or email clerks@cornerstonebarristers.com.