By Marc Willers, Garden Court Chambers
The decision in the case of Sedgemoor DC v Hughes is one which may have far reaching implications for all those representing families with children faced with eviction proceedings bought by a local authority, whether they be Gypsies, Travellers or others living on their own land without planning permission, on unauthorised encampments or indeed, in conventional housing.
In Sedgemoor the Judge accepted that - following the decision in ZH (Tanzania) v SSHD [2011] UKSC 4 (click here for judgment) - he had to take the best interests of the children into account when determining whether to grant an injunction which would have the effect of forcing a Gypsy family to leave their land which they had developed as a caravan site without planning permission and return to life on the roadside. Helpfully the Judge went further in his judgment and made it clear that the Court would need evidence from the Council as to the best interests of the children - evidence in the form of a social services report before he could decide whether an injunction should be granted.
It seems to me that the Judge's approach was correct and ought to be of general application and one which those representing families with children faced with eviction proceedings bought by a local authority should raise in every case. It might well lead local authorities to think again before seeking to evict or help influence the decision of the Courts in such cases.
In fact the Judge's approach ought in my view to extend beyond Court based eviction proceedings and should also apply to planning and enforcement notice appeal cases heard by the Planning Inspectorate (under the Town and Country Planning Act 1990) when the outcome of the appeal may result in a family with children being forced to leave their home. In such circumstances the best interests of the children are clearly relevant and an appellant in such a case should consider exploring with the local authority what steps they have taken to consider the best interests of the children - in accordance with their section 11 Children Act 2004, having regard to the the government guidance on compliance with that duty - and ensure that the Inspector takes their best interests into account when determining the appeal.
See below a note of the judgment given extempore:
IN THE ROYAL COURTS OF JUSTICE
Claim no.:
Between
SEDGEMOOR DC
Claimant
and
HUGHES & OTHERS
Defendants
NOTE OF JUDGMENT
This is a note of the judgment of HHJ Thornton on the Defendant’s application for an adjournment of proceedings for a claim for an injunction as delivered on 25 January 2012. The facts are set out in the judgment.
HHJ Thornton:
This case is listed for trial under part 8 proceedings in which Sedgemoor District Council seek relief by way of an injunction with permanent effect against two Traveller families restraining the families from using the caravans that they currently live in on the site within the claimant's area since that use is a significant breach of planning control and a contravention of an enforcement notice that has been confirmed on appeal. Today, Mr Marc Willers who appeared for the Defendants seeks an adjournment in circumstances that are unusual in this difficult field. I will grant the adjournment and briefly explain why.
There has undoubtedly been a lengthy and unsatisfactory planning history of this site and the Defendants use it for residential purposes in their respective caravans. It is not necessary to consider that history in any detail. I approach the history on the basis that the Defendants have resorted to a series of stratagems in the hope that by prolonging the planning history they can either achieve permanent or at the very least temporary means to reside on the site. However, I should refer briefly to three successive planning applications the Defendants have made. The first in 2010 was fully considered and rejected by the Claimant on planning grounds. There was an appeal. In the period between the rejection of the application and consideration of the appeal, an enforcement notice was served so the hearing considered both the planning appeal and appeal against the enforcement notice. Both appeals were rejected on planning grounds with detailed reasons explaining why. The Defendants submitted a second application with a relatively minor change in that it excluded certain parts of the original appeal. The local authority excluded the appeal under statutory powers - a sort of planning issue estoppel created by amendment to TCPA which the local authority relied on and it is accepted they were entitled to do so. Then after further and fuller consideration a third application was submitted to the local authority who did not reject it, but considered it in some detail even though the enforcement notice from the first application was in force and the Defendants were in breach of that by not complying with the terms of that notice.
The Claimant considered enforcement action by measures other that injunctive relief. The local authority also considered seeking injunctive relief. In September the local authority considered the application on its merits and rejected the application. It appears that the council did not consider that the merits of the application were any different from the first application or that there had been any difference with first application, but the council were in the process of considering new statutory guidance on the planning position with regard to Travellers. A policy which it was recommended that they consider by the relevant department. It is accepted that the terms of the policy now in place are different from that which previously prevailed. Therefore it is understandable why the council needed to consider the new applications afresh. In due course, they rejected the applications. The local authority was now in position to take direct action. The land is owned by two of the Defendants. It is not land that has been misappropriated by the Defendants. The Council issued proceedings on 23 September 2011 seeking permanent injunctions by way of Part 8 proceedings.
The Defendants meanwhile, as they are entitled to do, lodged an appeal against the refusal of their third application. At the time of the appeal being lodged there was no certainty when the appeal would be heard. When that application was submitted with an application for interim relief the future of that application was entirely unknown. The Defendants through their solicitors negotiated an adjournment of the application date with the consent of local authority. This hearing was adjourned until the first available date after 21st November 2011. It was only just before Christmas that the planning inspectorate forewarned the parties that the appeal would be heard in early February. Initially a date was suggested in early February, it was then fixed a week later when accommodation was available. By early January the parties were in a position where the appeal date was known, as was the return date for this hearing today, the 25th January. It was suggested soon afterwards in a letter on 6th January by the solicitors for the Defendants, who had a legal aid certificate to cover the hearing, that the hearing today should be adjourned until after the planning appeal. The Defendants have also offered an undertaking not to alter or add to the non-conforming use of the site that is presently applicable. That offer was rejected by the claimant. Today Mr Willers renews the application for an adjournment.
I am faced with a very difficult decision. There are apparently two regimes able to run in parallel. There is the regime under the planning system with planning applications, appeals and enforcement. There is also the court-based regime with injunctions which, whilst it is underpinned by the planning system, is, in effect, a separate form of control. The courts have, in a series of cases, worked out informal protocols: principles to assist judges when deciding whether to grant injunctive relief. That regime is particularly clearly set out in the judgment of Lord Scott in South Bucks DC v Porter where it is stated:
“100. In deciding whether or not to grant an injunction under section 187B the court does not turn itself into a tribunal to review the merits of the planning decisions that the authority, or the Secretary of State, has taken. The purpose of the injunction would be to restrain the alleged breach of planning controls and the court could not in my opinion properly refuse an injunction simply on the ground that it disagreed with the planning decisions that had been taken. If the court thought that there was a real prospect that an appeal against an enforcement notice or a fresh application by the defendant for the requisite planning permission might succeed, the court could adjourn the injunction application until the planning situation had become clarified. But where the planning situation is clear and apparently final the court would, in my opinion, have no alternative but to consider the injunction application without regard to the merits of the planning decisions.”
That is then supplemented by a gloss on the power to suspend an injunction.
In this case Miss Thomas, Counsel for the Claimant, invites me to embark upon her part 8 proceedings, in part because the appeal has no prospect of success. To this she adds the long history of avoiding the planning process and prevarication that the Defendants have attempted in order to postpone the day – from their perspective the evil day, from the Claimant’s respect the long awaited day - that the caravans are removed. Miss Thomas suggests I should take no account of the planning appeal since the council has already indicated that they will suspend the injunction because one Defendant is about to give birth. There are five children already and this would be a sixth on site. As a fall back, the Council says the Claimant asks me to suspend the injunction until after the outcome of the planning appeal is known.
But I cannot see the situation in quite such black and white terms. First of all, the council have considered in some detail the third planning application and it may have a different outcome to the earlier ones and the Defendants therefore have a right to appeal and that appeal is now in progress. The council cannot therefore consider that the appeal has no prospects of success. The Defendants have served two witness statements from a planning consultant who contends that the circumstances are now different and the appeal may well succeed.
In these circumstances, I cannot grant the injunction unless I engage on a wholly unsatisfactory exercise in which I seek to second guess the decision of the planning inspector. It is not clear that the Defendants are wholly motivated to avoid the consequences of planning regimes (which are in any event now different given the change in policy). In contrast, an adjournment for a short time will avoid the need for me to embark on a somewhat arid exercise when the decision itself will be available in some 8 weeks time.
I also consider that this application is not in a fit state for consideration by this court. First, this hearing must consider a number of factors that the planning inspector must also consider, including the changes to the planning regime. Further, this court and the inspector must consider the best interests of the children. There is now a statutory duty for a local authority to consider the best interests of a child and there is evidence put forward by adult Defendants that the interests of the children will be put at risk. Their education ... is all put at risk. The Defendants’ evidence is that there is no other place available to them near to this local authority where they can pitch caravans and continue life as Travellers. Two of the five children are of school age and are attending school. That progress will be hindered, if not wholly disrupted, by a move since there will be no schooling available to them. The somewhat gloomy prognosis is put forward by the Defendants that they will have to pitch by the roadside. It would appear that Sedgemoor District Council do not consider it part of their function to involve Social Services in the welfare of these children,; they appear to consider it a matter for Somerset County Council. There is no evidence about the children’s welfare available to this court beyond the somewhat unstructured evidence of the Defendants themselves.
Particularly since the judgment of Baroness Hale in the relatively recent judgment of the Supreme Court in ZH (Tanzania), admittedly in an immigration context, that all local authorities are under a duty to consider the best interests of the children. At the very least, that requires social welfare reports from those other than the Defendants. It is not sufficient for the Claimant to place the onus on the Defendants to obtain a social welfare report in this type of situation, particularly when no public funding is available to them for this.
Furthermore, I consider it to be unsatisfactory for this court to express an opinion on matters that will be considered by the inspector, even if these will not affect the inspector’s decision. Therefore it is not appropriate for this court to proceed with this hearing until: (i) the inspector's decision known and (ii) sufficient information is made available to this court to assess the best interests of the children.
The injunction application is adjourned. I direct that it is to be listed on the first open date after the decision of the inspector is known, for practical and obvious reasons, at least 14 days after decision is known. I would have thought that for practical reasons it would not possible to list the case within 14 days of the decision being known.
I have considered the application to suspend the injunction but for the reasons given I do not consider it appropriate to embark on a consideration of the merits. I should add that I do not intend this decision to send out a message on the planning merits, since I am only granting an adjournment for 8 weeks.
There should be no further breach of planning law.
There should be service of further evidence no later than 14 days after date of the planning appeal decision is known. That evidence should, to assist the court, contain some evidence independently obtained to enable an assessment of the best interests of the children. It is for the Claimant to decide how such information is to be obtained.
It is appropriate that that Defendants should be restrained from enhancing any of their planning breaches. They are subject to a stop order that has greater force than any order I might make here.
MR WILLERS: I can confirm that there will be an appropriate undertaking from the Defendants. Also the child that was expected was actually born on 21 January. There is an application for costs. There were several offers for an adjournment. I seek costs since 11 January 2012 when that offer was rejected.
HHJ THORNTON: you are under a duty to Legal Services Commission.
Mr WILLERS: Also those that instruct me wish to recover costs at appropriate rate. Unless I am mistaken the inter partes rate is not the same as the normal rate.
MISS THOMAS: I would resist any costs application. I seek costs in the cause.
HHJ THORNTON: I am minded to order costs in the cause. There are good reasons why either side should not at this stage be required to pay the other side’s costs. I would like to be clear that I do not regard the reason for the adjournment as the responsibility of the Defendants or those that represent them and all the work done was work that had to be done and will remain of utility for work in the eventual hearing. Therefore it is not either party’s responsibility for the adjournment, it is a consequence of the date of the planning inquiry. I also direct a detailed assessment of the Defendant’s publicly funded costs.
HHJ THORNTON: I should add that this is a situation that cries out, if at all possible, for an out of court, and out of planning-regime, settlement. I would urge on the parties to consider informal mediation that will include within it consideration of the longer-term location for the two Defendant families and the rights of them as landowners and planning matters. The quicker such a solution could be discussed, obviously the greater the saving in the long term. Finally, I would suggest that at any further hearing in this court in this matter, there should be available to the Judge the reasons for my ruling for the adjournment. I will make available the bundles that have been lodged.
