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Injunction and committal

Maldon District Council v Hammond
[2005] EWCA Civ 1001

The Appellant had failed to comply with an injunction to remove his mobile homes from the land. The Court had ordered him to be committed to prison for two months suspended on the condition that he comply with all the requirements of the injunction within that period of time.

The Appellant sought to extend the period of suspension before the Court of Appeal due to subsequent events. He claimed that there was no alternative site available for his mobile home to be site. The local authority had undertaken to provide immediate temporary accommodation to him upon his vacating the site. This was not on a mobile home site.

The Appellant argued that the Court below had considered it would not be a problem to resite the mobile home on an alterative site but that this was not possible. The Court held that the judge had been entitled to make the order he did. There was no obligation to provide accommodation to resite the mobile home. The Appellant had not argued the case on the basis that he had gypsy status. The judgement states:
    "On behalf of the appellant Mr Ground QC submits that the period of suspension should be extended by this court. He accepts, when the point is put to him, that there is little criticism he can properly make of the approach of Curtis J on the information which was before Curtis J. He submits that subsequent events are such that this court should review the sentence imposed and should increase the period of suspension. It is submitted that Curtis J made an error in his construction of the judgment of Buckley J in relation to housing being available. Buckley J stated at paragraph 75, having considered the appellant's circumstances:
      'I do not find that there would be great hardship on Mr Hammond. The only one really is that he would have to find alternative accommodation, and that I have no reason to suppose would be insuperable given time.'
    12. Mr Ground submits that, both in that respect and in respect of where the mobile home might go, the judge has misconstrued the judgment of Buckley J. In relation to the mobile home, Buckley J stated at paragraph 121:
      'But unless one ties the vehicle repairing to the mobile home, it is clear to me that there will not be any particular difficulty in re-siting the mobile home on an alternative site. I do accept it would be difficult to do that and take all the cars and shells of cars that have accumulated along this site, but I do not regard that I am afraid as a particular hardship.'
    13. On behalf of the council it is conceded that there is no other site available in which the appellant can reside in his mobile home as a mobile home, and to that extent the optimistic approach which Buckley J adopted has not been borne out by events. However, that is not the case in relation to the question of accommodation for the appellant if he is separated from his mobile home. An undertaking is given on behalf of the council by Mr Robb that upon his leaving the site, immediate temporary accommodation will be available to the appellant. At paragraph 18 of the skeleton argument of the council:
      'The Council has now accepted that it owes a duty to Mr Hammond under the Housing Act 1996 and has placed him at the top of its waiting list for permanent accommodation. Once he vacates the site, Mr Hammond would be provided with immediate temporary accommodation.'
    Mr Robb has confirmed that departure within the period of suspension of the order, which expires on the 31st of this month (that is about three weeks away), would enable and would require that undertaking to come into effect."
The Court held that the judge had been fully entitled to make the order he did and that the correct place to make an application to extend time was the High Court whether or not liberty to apply had been expressly stated as it was to be implied in to the Order.
    "The appropriate course, if for any reason an extension of the period of suspension was to be sought, was to make early application to the High Court. That is so even though liberty to apply had not expressly been stated. Even at this stage there could be an application to vary the injunction of Buckley J, although I am not encouraging that. A difficult task would be faced by the appellant. Application could be made (which is the one made to this court) that the period of suspension should be extended. In saying that, I am not encouraging hopes that, upon the findings of Curtis J, it would be. But the court would consider the up-to-date position.

    23. I express the view that it remains the position that the appellant's intention is to seek permission to remain on the land in his mobile home. I have referred to the undertaking which the council have given, so that, as far as a roof after his head is concerned and the obvious hardship resulting from the absence of such a roof, his needs are to be met. The point has been made on behalf of the council that they are under no duty to provide a site for the mobile home, either for use as a residence or otherwise, and any statutory status under which the appellant could claim relief as a gypsy is not admitted; and the case has not been argued on his behalf on that basis."


New circular

Wychavon District Council v Rafferty
[2006] EWCA Civ 628

This was an expedited hearing before the Court of Appeal from a decision committing the Defendants for breach of an injunction and refusing to vary the terms of the injunction.

The gypsies appealed to the Court of Appeal contending that (i) the judge had erred by following the case of Mid – Bedfordshire DC v Brown [2004] EWCA Civ 1709 which differed factually from this case, (ii) the merits of the planning appeal had substantial merit, and (iii) judge had not given adequate consideration to other matters such as the availability of alternative accommodation. The CA dealing with each of these points in turn rejected both the appeals:
    38. First, then, the failure of the judge to recognise the distinction of the facts of this case from those of the Mid Bedfordshire case. This was the case in which the judge had suspended the injunction until the determination of the planning appeal. The Court of Appeal had disagreed with him in the trenchant terms I have already quoted. It was suggested that that case was distinguishable on three grounds. First, in that case there had been no apology; second, in that case the land in question lay in the green belt in an area of great landscape value, so that the likelihood of planning permission being granted was that much the less; and third, that the defendants had moved on to the land before applying for planning permission.39. That those grounds of difference exist cannot be doubted, but in my view they are of no consequence. The judge was concerned, as we are, with the principle established by the Mid Bedfordshire case. He was well aware of the facts relied on in this case and indeed from the differences from the facts in that, as he referred in terms to the fact that in that case the relevant land was green belt land. He described the facts of the two cases as very similar, but not as the same. He did not slavishly follow the decision of the Court of Appeal in the Mid Bedfordshire case, but conscientiously sought to apply the principles enunciated by the House of Lords in the South Bucks case. Although it is true that there are differences in the facts of the Mid Bedfordshire case and of this case, I cannot see that Newman J is open to criticism for following the principle established by the Mid Bedfordshire case notwithstanding those factual differences.

    40. I turn then to the merits of the planning appeal. The judge specifically addressed this issue in paragraphs 32 to 39 of his judgment. I have already quoted his conclusion. The appellants' criticism is that by declining to enter into a more detailed examination of the merits, he wrongly fettered his own discretion. They submit, on a number of detailed grounds, that had he done so he would or should have concluded that there was significant merit in the appeal.
The the appellants relied on various detailed points including an argument that “proper consideration of the Office of the Deputy Prime Minister's Circular 01/06, published on 2nd February 2006 (that is to say, after the refusal of planning permission by the local planning authority) would lead to the view that permission should now be granted, if only for a limited and temporary period.”. However, all the points were rejected. It was not for the CA on this appeal to second guess what the inspector would determine:
    50. It is clear I think that the evidence on which the inspector will ultimately decide the appeal will be to a substantially greater extent than is present before us and is likely to be different from that before us. We have been referred to passages from the reports of the experts obtained by Dawn in support of her appeal against the refusal of planning permission. There is also contrary evidence from highway engineers, and in some cases experts, which challenged the conclusions to which she has come. It is not disputed that the experts obtained to support the case for Dawn on the appeal will be cross-examined on their statements, and there will be counterstatements from witnesses called by the local planning authority, on which no doubt they will be cross-examined too.

    51. As the decision of the House of Lords in Porter shows, it is not our function to second guess the outcome of the appeal, and even if it were, we do not have the material on which to do so because of the further and different evidence, to which I have referred,
    which is likely to be adduced in due course.

    52. The judge assessed the merits of the planning appeal as "not hopeless", but that they did not have "a real prospect" of success. To have any prospect of success on this appeal, the appellants have to establish that the judge's assessment was perverse. It appears to me that it is quite insufficient to suggest that other people might put the chances of success on the scale of certain to win and certain to lose somewhere different on the scale, unless it can be said that the point at which the judge put it was so wrong that no reasonable judge properly directing himself could have reached the conclusion that he did.

    53. To my mind the appellants do not begin to satisfy that burden on them. It may well be that different minds will describe the prospects of success in different terms. It cannot be said that the terms employed by the judge were not fairly descriptive of the prospects of success on the appeal as they appeared to him, and that that is sufficient for the purpose of exercising his discretion whether or not to vary the injunction granted by Penry-Davey J.

    54. I then turn to the third general head of complaint in the respect of the judgment of
    Newman J. It is suggested that he failed to give proper consideration to whether alternative non-roadside accommodation was suitable and/or whether he gave sufficient weight to the obligation of the United Kingdom to foster gypsy life and culture. I do not think there is anything in that point. The judge in paragraphs 31 and 41 specifically considered the alternatives of non-roadside accommodation as well as bricks and mortar accommodation, and he exercised his discretion in the light of each of them.

    55. Then it was suggested that Dawn was not bound to accept the offer of alternative accommodation on the Cleve Prior site as it did not include her parents, and that the judge was wrong to find that her refusal was "unjustified" (see paragraph 28). The offer was not ideal, as the judge observed, but it would have provided a more stable alternative to remaining on the lay-by, for which possession was being sought by the highway authority in the local county court. It was only an anticipated decision of the House of Lords which could have given them any defence to that claim, and in any event it went the other way. I can see no ground on which to criticise the judge's conclusion.

    56. Then it is suggested that there was and is no proper alternative accommodation for Mr Rafferty and his wife. The judge was not satisfied that this was so. On the information provided to us, his scepticism appears to be justified. It appears that it is the persistent refusal of Mr Rafferty and his wife to complete a second application and/or attend for an assessment of their needs which has prevented the local housing authority from considering their housing needs any further. The judge thought that if they did cooperate accommodation would be provided, and I do not think it can be said that the judge was demonstrably wrong.

    57. Then it is said that the judge failed adequately to explain why his order was
    proportionate for the purposes of Article 8 of the European Convention on Human Rights. It was suggested that he failed to follow the structured approach favoured by Sedley LJ in Coates v South Bucks District Council [2004] EWCA Civ 1378 at paragraph 28. In that same case, Lord Phillips (then Master of the Rolls) said this:
      "7. In my judgment there is one cardinal rule. The judge's reasons should make clear to the parties why he has reached his decision. Where he has had to balance competing factors it will usually be possible to explain why he has concluded that some have outweighed others. Even where the competition is so unequal that the factors speak for themselves it is desirable to say so."
    58. The passages of which counsel complained are paragraphs 41 and 42, which I have quoted in full. As those passages make plain, they were but a summary of all that went before. To my mind, it is plain as a pikestaff why Newman J reached the conclusion that he did, and that the cardinal rule to which Lord Phillips referred was amply observed by him.”
The CA therefore refused to discharge the injunction. It then went on deal with the appeal against the committal, which they dismissed. The appellants were in contempt, there were no procedural defects, the penalty did not lie outside the legitimate range of penalties for the contempt proved, and there was available alternative accommodation.

New circular - another case

South Bedfordshire District Council v Price
[2006] EWCA Civ 493

This is another Court of Appeal decision on an appeal against committal orders and permission to appeal against the refusal to vary or discharge an injunction restraining breaches of planning control. Again, the CA dismissed the appeals holding that there was no basis on which the judge's refusal to suspend the injunction could be said to be wrong. It would only be right to suspend the committal order pending the result of the planning appeal if there were evidence showing a substantial likelihood that the planning appeal would succeed. The Appellant’s chances of success on the planning appeal had improved from remote by virtue of the new circular 01/06 Planning for Gypsy and Traveller Caravan Sites, but it was impossible to say that they were particularly strong.

Travellers - alternative sites

South Bedfordshire District Council v Price
[2005] EWHC 2031 (QB)

This is another case where the question of the lack of availability of alternative sites for travellers was raised as a defence to the breach of planning control. This case dealt with a breach of an injunction that had been obtained against some travellers. It was argued on their behalf that the fact that the local authority had acknowledged the need for an increase in site for travellers in the area meant that it could not enforce planning against travellers where a court order had been obtained on the basis that the injunction should be suspended until alternative provision had been made.

The Court dismissed this contention stating that it would be rare for a court not to impose a sanction for a prolonged and deliberate breach such as in this case. The judge noted that effectively the submission that there should be no sanction amounted to one that greenbelt control should be unenforceable against travellers until the day was reached where sites were available for all those who wanted them. He noted that there was no authority where it had been held that the widespread failure of local authorities to provide sufficient sites to all travellers who wanted them was a defence to enforcement action. He further noted that although it would be regrettable to sent young mothers to prison the remedy was in their hands to comply with the terms of the injunction.

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