On good authority
This week saw the Dale Farm legal battle draw to a close. Amanda Morris and Penni Gibbs review a recent High Court judgment in a separate Traveller case that examined the balance between the authority of court orders and the personal circumstances of the defendant.
Under section 187B of the Town and Country Planning Act 1990, a local planning authority may apply to the court for an injunction if they consider it necessary or practical for any actual or apprehended breach of planning control to be restrained. Further, under the Act, such an injunction may be issued against a person whose identity is unknown.
The application of section 187B has often been an issue before the courts in cases of gypsies and Irish travellers. A recent example is the case of Broxbourne Borough Council v Robb and others [2011] EWHC 1626.
The significance of the case was in the approach taken by the Court in maintaining the authority of court orders, while simultaneously carefully considering the personal circumstances of the defendant.
The facts
The defendant in this case was an Irish traveller who in October 2009 purchased plot 19, which was part of green belt land and property of the local park authority. He was unaware of the without notice injunction issued by the Broxbourne Borough Council in May 2008 which prohibited residential caravans on a number of plots of green belt land, including plot 19.
In August 2010, an enforcement officer from the Council observed a large mobile home and a touring caravan on the plot.
In November 2010, the defendant was sent a copy of the injunction and was required to comply with it within 14 days. He refused to leave. The local authority issued a committal application for contempt of court and breach of terms of a without notice injunction. The defendant applied for a variation of the injunction which was refused.
The arguments of the defendant before the Court were that he and his family had settled on the land, his children had started attending the local school and they had nowhere else to go. He submitted that the application for committal was unlawful because the local authority refused to take his personal circumstances into consideration. This was inconsistent with section 71 of the Race Relations Act 1976 which “imposes an obligation on bodies like the council to have due regard to the need to promote equality of opportunity and good relations between persons of different racial groups”. (para 29 of the judgment).
Further, the defendant argued that forcing his family to leave the land (in the absence of an alternative site) would constitute an interference with their Article 8 rights to respect for their private life, family life and home.
The decision
The main issue before the Court was striking a balance between the local authority's development plans to protect the green belt area and the personal circumstances of the Irish traveller and the needs of his children.
Applying the principles established in the earlier authorities of Mid Bedfordshire District Council v Brown [2004] EWCA Civ 1709, South Buckinghamshire DC v Porter (No.1) [2003] UKHL 26 and South Cambridgeshire DC v Gammell [2008] EWCA Civ 1159, the Court took the following factors into consideration:
- the planning issues including the length of unlawful occupation of the site, the planning merits and the availability of suitable alternative sites
- the personal circumstances of the family, including the implications of Article 8 of the ECHR, and
- the overreaching public interest in ensuring that court orders are respected and obeyed.
A primary consideration in the case was the position of the defendant's children and: "the disruption to their education should the family have to leave the site" (para 50 of the judgment). Forcing the family to move would amount to clear interference with their right to home and family life. Nevertheless, relying on the leading case of Chapman v United Kingdom (2001) 33 EHRR 18, the Court gave greater weight to the defendant's conscious defiance of the law since he knew of the injunction. Thus, in light of the planning laws and their enforcement, the Court held that the interference with the Article 8 rights of the family was proportionate.
It was held that the defendant should have applied to vary the injunction as soon as he knew about it. Instead, he continued doing precisely what was prohibited by the Court. Tolerating his conscious defiance of the law would have undermined the authority of court orders, which was an overreaching consideration.
Handing down the judgment of the Court, Mr Justice Cranston ruled that the appropriate sentence for the defendant was his committal to imprisonment for 28 days which sentence was not to take effect if the defendant removed his caravans within four weeks of the date of the judgment. It was held that this was a reasonable period of time which would allow for him to remove his caravans and for his children to finish their school year.
The implications
This decision struck the right balance between the public interest of protecting the environment and obeying court orders, on the one hand, and protecting the personal right to respect for private and family home, on the other.
Three of the most important factors for consideration in similar cases would be:
- maintaining the authority of court orders
- any planning matters in issue, and
- any personal circumstances such as the provision of stability and education.
Nevertheless, courts are unlikely to tolerate conscious defiance of the law.
This case also confirms the efficacy of injunctions granted against persons unknown under section 187B.
Amanda Morris is a partner and Penni Gibbs is a solicitor in the real estate dispute resolution team at Blake Lapthron. Amanda can be contacted on 023 8085 7483 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it., while Penni can be reached on 023 8085 7493 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
