Timing is everything when obtaining an injunction preventing gypsies occupying land

01 Jan 2018

Planning and Environment

Basingstoke and Deane Borough Council was recently involved in a case that demonstrates the importance for local authorities of taking action before gypsies move on to the land when the court comes to consider whether they should be allowed to remain on the land pending a determination of any planning application.

The Council were successful in resisting an application, heard over 5 day’s in the High Court, of an application by 10 gypsy families to vary an injunction obtained pursuant to s.187B of the Town and Country Planning Act 1990, to permit their residential occupation of a site in the countryside. This injunction had been obtained after the gypsies had begun works on a site but before they had moved on with their families. An application for planning permission had been made by the gypsies.

In the course of a lengthy judgment in which 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 the Court held at paragraphs [137]-[150]:

(1) There is an overarching public interest in ensuring that court orders are respected and obeyed.

(2) It was a main purpose of Parliament in creating section 187B of the Act to ensure that the system of local and democratically based planning grant was effective.

(3) The defendants were all party to a plan to pre-empt that planning system and to gain an unfair advantage for their application by making it difficult and expensive for the Claimant to do other than grant their application retrospectively.

(4) Despite claiming otherwise, none of the defendants was living on the site when the injunction was obtained. The defendants appreciated the importance of being able to say they were living on the site at the time when it was obtained and the defendants or some of them were contemptuous of the legal process. That type of approach simply cannot be permitted to gain an unfair advantage, or the authority of the court and the democratically based planning process will be damaged beyond repair.

(5) The object of the original injunction was to preserve the status quo pending the determination of the planning process. Those who moved on to the site after the injunction, in this case, did so in “conscious defiance of the injunction”.

(6) The variations sought were, effectively, sufficiently wide to render the original purpose of the injunction nugatory, that purpose being to preserve the status quo at the time of grant, which did not include any residence on the site, pending resolution of grant of permission or appeal.

(7) The flagrancy of the initial planned unauthorised occupation was such that it was, in many ways, more important in this case than in the cases of Brown and Robb to uphold both the authority of the court and to support the fundamental tenets of the planning system.

(8) The hardship to the defendants themselves, more significantly to their families and particularly their children, who had at present no alternative site to go to and would be forced on to the side of the road again, was obvious. However, that was their situation before the injunction was granted.

(9) This was not a case where any of the children had ill health. None of the families had 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 and their attempts since then had been thwarted by a turnover of people actually living at any one time on the site. While the best interests of the children must be a primary consideration they do not overtop other consideration and, similarly, while a decision not to vary the injunction may lead to interference with their and their parents’ article 8 rights, there were other competing interests and the court must assess proportionality.

(10) There had, in this case, been very substantial environmental damage and there was urgency in the need to bring this unauthorised occupation to an end.

(11) The Claimant had made an appropriate assessment of the proportionality of continuing to oppose the application to vary and to preserve the injunction taking into account the defendants’ and other residents’ circumstances including the best interests of the children as a primary consideration. Not only had they made an appropriate assessment but, having considered all the evidence, the Court was satisfied that that assessment was correct.

(12) To vary this injunction would be wholly to undermine the court’s authority and the planning system and would give a green light to “strong arm” tactics designed to bypass or unfairly influence planning decisions. Accordingly, the Injunction would not be varied and the Defendants’ application would be dismissed.

Click here for a copy of the transcript of the High Court Judgment.

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