High Court orders traveller to leave protected site within 28 days or face prison

A High Court judge has told an Irish traveller he has 28 days to remove his caravan from an environmentally protected site in Hertfordshire or he will face prison for contempt of court.

The judge, Mr Justice Cranston, said the four-week period would give sufficient time to allow three of Daniel Beary’s children to complete the school year at a local primary school, where they are said to be making good progress.

In Broxbourne Borough Council v Robb & Ors [2011] EWHC 1626, officers at the local authority had been monitoring plot 19 at Wharf Road, Wormley in Hertfordshire for some time amid concerns that it was being used unlawfully.

The site, which lies on the western bank of the River Lea and is within the green belt, had been used for leisure purposes over the years. The erection of small and unobtrusive buildings was permitted by planning laws but moveable structures such as caravans for permanent residential use were not.

The local authority applied for and was granted a without notice injunction on 1 May 2008 prohibiting, amongst other things:

• “Causing or permitting any caravans, mobile homes, or other residential accommodation or structures to be stationed on plot 19 (other than the touring caravan present on plot 19, 24 April 2008)
• Occupying or causing or permitting the occupation of caravans, mobile homes or other residential accommodation that are stationed on plots 14 or 19."

A copy of the injunction was attached to the fence around plot 19 and was shown by council photographs to still be in place at various points in 2008 and 2009.

Mr Beary purchased the site from a cousin in October 2009, but was – it was accepted – unaware of the injunction when he moved onto the plot.

When a council enforcement officer visited plot 19 in early July 2010, she found a large mobile home stationed there. The officer wrote to Mr Beary in November 2010, enclosing a copy of the injunction and explaining its requirements.

In the meantime, in September 2010, Broxbourne’s planning and licensing committee had authorised enforcement action in respect of residential use of the site.

A meeting took place on 14 December at which Mr Beary set out the detail of his family’s personal circumstances. He explained his children’s schooling arrangements and argued that the family had nowhere else to go. Six days later, however, the council applied for Mr Beary to be committed for contempt.

In March 2011 Broxbourne refused an application by Mr Beary for planning permission. This was for a range of reasons, including inappropriate development of the green belt.

Mr Beary appealed that refusal, and the case will be heard by a planning inspector next month (27 July). The outcome is not expected until September.

An application for an adjournment of the contempt of court proceedings until after that outcome is known was made on Mr Beary’s behalf, but was refused by Mr Justice Cranston in the High Court earlier this  month.

Counsel for Mr Beary, Marc Willers, argued at the hearing that council officers had decided to take committal action without referring the matter back to the planning and licensing committee and without considering alternatives. There was a closing of the council’s mind in that only one option was considered, he said.

Mr Beary’s counsel also claimed that Broxbourne had failed to consider the Race Relations Act 1976 and Article 8 ECHR implications of taking committal action, and the impact of such action on the children.

However, the judge said that any flaws in the council’s decision in applying for the committal of Mr Beary could be remedied by the court.

He added that he was not persuaded that there were any such flaws. Although there was no explicit reference to the 1996 Act duty in the papers, it was clear that in substance the council had had regard to the special position of gypsy and traveller occupants at Wharf Road, the judge found.

Mr Justice Cranston said: “It seems to me that the council have had due regard to the position of Mr Beary as an Irish traveller. Moreover, the countervailing circumstances in his case are strong….at this stage it need simply be noted that he faces high hurdles [on his planning appeal]. Moreover, there are the considerations about the extent to which the court can tolerate the flouting of its orders.”

The judge said a trilogy of Court of Appeal decisions – Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709; [2005] 1 WLR 1460; South Cambridgeshire District Council v Gammell [2005] EWCA Civ 1429; [2006] 1 WLR 658; and Wychavon District Council v Rafferty [2006] EWCA Civ 628; [2006] 18 EG 150 – were relevant and binding.

“These establish that in committal applications and applications to vary injunctions which are being breached maintaining the authority of court orders is an overarching consideration,” he said.

Mr Justice Cranston said that as to the planning merits, he was not persuaded that there were real prospects Mr Beary would succeed before the planning inspector.

In relation to the position of Mr Beary’s children, the judge said a person who had consciously defied planning laws and their enforcement when establishing their home on an environmentally protected site, could not expect the courts to be quick in defending them.

He added: “While Mr Beary’s conscious defiance of the law since he knew of the injunction cannot be visited on his children nonetheless, as [the Supreme Court decision in] Z H (Tanzania) made clear, their interest as a primary consideration does not mean that it cannot be outweighed by other factors in the balance so that interference with their Article 8 rights is proportionate.”

Also rejecting an application by Mr Beary for a variation of the injunction, the judge said: “To vary the injunction so as to permit the very action it is designed to prevent would fail to acknowledge the force of the injunction.”

Mr Beary had acknowledged breaching the injunction and had apologised to the court.

Mr Justice Cranston said the court should be slow to tolerate contempt of its orders, “for to do so would diminish respect for them and undermine its authority”.

But the judge concluded: “In all the circumstances of this case, and having given them the most anxious scrutiny, I have concluded that the council must succeed in its application.

“To impose the fine proposed by Mr Willers would not accord observance of the injunction the importance it deserves. In my view the appropriate sentence is the committal of Mr Beary to imprisonment for 28 days, that sentence not to take effect if he removes the caravans within 4 weeks from today. That period should give him time to remove the mobile home and caravan from the site and will enable the children to finish the school year at the local primary school.”

Philip Hoult