Gypsy travel knows no bounds

Following the recent Court of Appeal decision in South Buckinghamshire District Council v Porter and three other linked cases (2001) 12 October, Richard Hickmet and David Willshaw discuss the implications for local planning authorities making applications under section 187B of the Town & Country Planning Act 1990 This is the first time that the Court of Appeal has considered the use of injunctions to enforce breaches of planning control following the enactment into UK law of the European Convention on Human Rights.

The law has been changed in important respects and although the Court of Appeal decision in all four cases concerned gypsies, it will have wider application.

Article 8 of the European Convention gives everyone the right to respect for his private and family life, his home and correspondence.

Interference by a public authority with that right is prohibited unless it is in accordance with the law and is 'necessary in a democratic society ...

for the protection of the rights and freedoms of others'.Section 187B of the 1990 Act gives a local planning authority the right to apply to the court for an injunction to prohibit a breach or apprehended breach of planning control.

The court has a discretion 'to grant such injunction as the court thinks appropriate for the purpose of restraining the breach'.Thus applications for injunctions have hitherto been made by local planning authorities whether or not an application for planning permission has been made and whether or not an enforcement notice has been served.

Frequently, such applications have been made in cases concerning gypsies who have purchased or acquired land in the countryside, often in the green belt, and thereon sited their caravans to live in with their families.

Such applications could be made whether or not an appeal had been lodged against a refusal of planning permission or an enforcement notice.

Large awards of costs have been made.

Hitherto, the court has generally refused an application to adjourn so as to await completion of any planning appeal.In Hambleton v Bird [1995] 3 PLR 8, Lord Justice Pill in another case concerned with an unlawfully stationed gypsy caravan, considered the extent to which the court itself should exercise an independent judgment in deciding whether or not to grant an injunction.

The court always has a discretion whether to grant an injunction but as he observed, that discretion did not entitle a judge 'to act as a court of appeal against a planning decision or to base a refusal to grant an injunction on his view of the overall public interest'.At the enforcement stage, when an application to commit a defendant for breach of the injunction is brought, a court could then consider proportionality, hardship, availability of alternative sites and other relevant matters.

There is no doubt that an application under section 187B for an injunction requiring the gypsy to vacate the land upon which he has stationed his caravan is an interference with his right to family life and his home.

Equally, there is no doubt that an application by a local planning authority for an injunction under section187B is lawful.

The Court of Appeal has not outlawed section187B; however, it has changed in important respects the approach which the judge should adopt in hearing such an application.In effect, Hambleton v Bird has gone, although it is still not open to the judge to reach his own independent view on the planning merits of the case.

Nevertheless, it is now plain that a judge should not grant injunctive relief unless he would be prepared to commit the defendant to prison for a breach of that injunction.

This necessarily involves the judge in considering questions of hardship for the defendant and his family if required to move.

It will also involve an investigation as to the availability of alternative sites and questions as to the family's health and education.

The planning history of the site might well be taken into account, particularly where there has been a long history of successive applications for planning permission, appeals and enforcement notices which have been ignored.

Thus an injunction is more likely to be granted if normal enforcement measures have failed over a prolonged period of time.

The Court of Appeal observed that a flagrant and extensive breach of planning control might well prove critical.

Lord Justice Simon-Brown observed that, on the other hand, 'a court now may well be reluctant to use its powers in a case where enforcement action had never been taken'.

In considering its approach, the court will have regard to the degree of damage being caused to the environment.In urgent situations an injunction to pre-empt an anticipated breach is more likely to be successful.

Preventing gypsies moving onto a site might in the long term cause less hardship than obliging them to move several years after they first moved onto the site.

Key to the court's decision is proportionality.

The court will only grant an injunction if it is proportionate to the aim of safeguarding the environment and if it does not impose an excessive burden on the gypsies right to private life and a home as well as the retention of his ethnic minority.Although dealing with gypsies, the recent Court of Appeal decision will be applicable to cases where an individual has either bought land and/or occupied it as his home in breach of the planning laws and regulations.

In all but the most flagrant of cases in residential as opposed to commercial cases, it is unlikely that an injunction will be granted.

Henceforth local authorities are unlikely to get an injunction unless they can show a history of persistent failure to observe the planning process, coupled with evidence of actual damage to the environment which, on balance, outweighs the hardship caused to gypsies or the particular individual concerned.

Local authorities that have had a history in the past of refusing planning applications by gypsies are going to have much greater difficulties in obtaining injunctions.

Cases will take much longer and will have to be prepared in greater detail.

Richard Hickmet is a planning barrister practising at South Western Chambers in Taunton and David Willshaw is a solicitor at David P Willshaw Solicitors in Devon.