Appellants occupying green belt land in defiance of enforcement notices - respondent council applying for injunctive relief - know-ledge that injunction would cause real hardship to appellants - power of court to make provision for travelling showpeople - appeal dismissed

Tonbridge and Malling Borough Council v Davis and others: CA (Lords Justice Auld, Arden and Jacob): 26 February 2004

The first appellant purchased green-belt land in 2000.

The appellants developed the site in order to park their caravans and fairground equipment, knowing that such actions breached planning control.

The respondent council served the appellants with numerous enforcement notices, which were upheld on appeal, but they consistently refused to comply with them.

In May 2003, the respondents were granted injunctive relief under section 187B of the Town and Country Planning Act 1990.

The appellants appealed that decision on the grounds, among other things, that the judge had erred in basing his decision on the findings of the planning authority; and given the provisions of article 8 of the European Convention on Human Rights, the grant of an injunction dispossessing them of what was effectively their home was disproportionate.

Held: The appeal was dismissed.

Richard Drabble QC and Daniel Kolinsky (instructed by Charter & Law, Caterham) for the appellants; Simon Bird (instructed by the solicitor to Tonbridge and Malling Borough Council) appeared for the respondents.

Travelling showpeople were recognised in circulars 21/91 and 78/91 respectively as having a distinct cultural identity that local authorities were required to take into account in matters of planning control.

However, the duty on local authorities to provide accommodation for gypsies did not extend to travelling showpeople.

Although the decisions in Chapman v United Kingdom (2001) 33 EHRR 399 and South Bucks District Council v Porter [2003] UKHL 26; [2003] 2 PLR 101 applied to gypsies, the reasoning in those judgments applied equally to the exercise of discretion under section 187B on the matter of granting injunctive relief against travelling showpeople.

On that basis, although the court was obliged to defer to the planning authorities on the question of planning merits, it was required to make its own decision on the issue of enforcement, having regard to all the circumstances surrounding the case.

It was clear that the judge had exercised his own jurisdiction on this issue.

On the evidence before him, the judge had been entitled to grant the relief sought by the respondent.

He had clearly considered the fact that expelling the appellants from the site would cause them real hardship, because they had been unable to find an alternative site in the south-east of England.

He had also considered, and rejected, the remedies of self-help and criminal proceedings for non-compliance with enforcement notices.

However, he had held that postponing enforcement of the various notices until the appellants had found alternative accommodation would mean an indefinite postponement; the appellants had remained on the site in defiance of planning controls for a considerable period of time, and he had been entitled to conclude that removing the threat of eviction would fortify, rather than soften, their intransigence.

Moreover, their knowingly unlawful occupation of the site had caused serious environ-mental damage, which, as a matter of public interest, outweighed the hardship that they would suffer by having to leave.