A High Court judge has given his reasons for the grant of an interlocutory injunction requiring a landowner to demolish a ‘hobbit house’ he built in woodland.
The defendant in Wealden District Council v Mitchell  EWHC 2328 (QB), Dean Mitchell, owns a plot of land in Ninfield in East Sussex.
The ‘hobbit house’ is a wooden structure that he has erected and which he has, for a time, occupied as a dwelling.
The erection and maintenance of the structure was a breach of planning control, the judge, Mr Justice Holroyde, said in a ruling published this week. “That is so because it is a dwelling. It would also be so even if it were neither intended for use as a dwelling nor in fact used as a dwelling.”
In February 2015 Wealden District Council issued an enforcement notice on the basis that the structure was an unauthorised development outside the settlement boundary and within a protected woodland which had not been justified by any proven case of agricultural or forestry need. Further reasons related to the design of the dwelling and the creation of additional traffic hazards.
No planning application had every been made in relation to the ‘hobbit house’.
Mr Mitchell appealed against the enforcement notice. The inspector, taking into account the particular health, emotional and financial issues he faced, agreed to an extended compliance period. The defendant failed to comply, however.
Mr Mitchell had spoken to the council’s housing options officer but took no further step, as far as Wealden knows, to obtain alternative housing.
In subsequent correspondence Mr Mitchell stated he was a free man and did not agree with or comply with any legislation.
The local authority then began proceedings for a permanent injunction which would require Mr Mitchell to demolish the structure and make good the land, and would prohibit him from creating any other residential structure on the land. It also applied for an interlocutory injunction.
Mr Mitchell did not appear at the hearing of the application for the latter and was not represented.
Mr Justice Holroyde said he had to ask three questions:
- Whether there was a serious question to be tried;
- If yes, whether damages would be an adequate remedy for a party injured by a decision of the court, either granting or refusing to grant an injunction;
- If not, where the balance of convenience lay.
On the first question, the judge said it was “entirely clear” that there was a serious question to be tried.
“I can well understand why Mr Mitchell would prefer not to have to comply with the enforcement notice,” he said.
“He has put a lot of work and, judging by the photographs, has used considerable skill in building the structure. It seems that he has own reasons, which no doubt seem good to him, to prefer to live a somewhat secluded life. He has produced a letter, which confirms his own assertion that he has been able to do useful work in clearing parts of the woodland and in seeking to deter fly tippers.”
But, the judge said, he had “done all this in breach of the planning control which aims to protect and benefit the public as a whole and which applies to everyone: even those who, like Mr Mitchell, declare themselves not to be bound by the legislation and not to consent to its application to them.”
Mr Justice Holroyde said the enforcement notice had been validly issued; it had been substantially upheld on appeal, subject only to the granting of an extension at the time for compliance; it remained in force and valid on the day of the hearing; and Mr Mitchell had not complied with it or, so far as the evidence showed, taken any step towards compliance with it.
“The district council has, in my judgement, a strong case, so far as it is possible to assess it in the absence of any contribution whatsoever from Mr Mitchell,” the judge said.
As to the second question, damages plainly would not be an adequate remedy for the district council, Mr Justice Holroyde said.
“If the injunction were wrongly refused any claim for damages would be difficult to quantify. Mr Mitchell's own statement recently is to the effect that he has no money with which to pay any damages, and if an injunction were refused, all the indications are that the breach would continue. In contrast, should Mr Mitchell ever be able to show that the injunction was wrongly granted, it seems to me that damages could and would be an adequate remedy for any loss or wrong he had suffered.”
On the issue of the balance of convenience, the judge said that as far as he was aware Mr Mitchell had not acknowledged service with the Part 8 claim. He had not filed any defence. He had at no stage indicated what his defence to the claim would be, and had asserted that his reasons for acting as he had done were no business of the council's.
“His recent communication, that he no longer uses the structure as his dwelling - even if qualified by his further recent declaration that he sometimes sleeps there - is an indication that the granting of the injunction would not deprive him of his only home,” the judge said.
“In any event there is considerable force in the point made by Mr Beglan [counsel for Wealden] that ample time has already been allowed to Mr Mitchell to seek alternative accommodation if he be in need of it.”
The judge said that any interference with Mr Mitchell's right to possession and enjoyment of his property was “plainly in accordance with the law, namely the lawful enforcement of planning control, and in my judgment it appears to be proportionate”.
Mr Justice Holroyde said he could see no good reason to prolong “yet further” the breach of an enforcement notice which was first issued nearly two and a half years ago.
“I go somewhat further. I am conscious, of course, that I have only heard one side of the story, but I am bound to say, on the information and evidence before me, that there appears to me to be a very high degree of likelihood that the district council would succeed in obtaining a final injunction at trial. Indeed, in the absence of any engagement in these proceedings thus far by Mr Mitchell, it is difficult to see what defence he could put forward,” the judge added.
Mr Justice Holroyde continued: “Certainly, there is no merit in the argument advanced in correspondence that the structure is not a house. It clearly lacks certain amenities generally found in most houses and generally thought to be desirable. It is however plainly capable of being used as a dwelling and Mr Mitchell's own case in his appeal was that he was, at that time, so using it.”
The judge said that the council had been entirely reasonable in its willingness to offer assistance and advice to Mr Mitchell, and to allow reasonable, if not generous, time to comply with the enforcement notice.
Counsel for Wealden told the judge at the hearing that the council would be content if the court were to allow Mr Mitchell a further three months within which to comply with the notice.
Mr Justice Holroyde said the draft order which was before the court explained to Mr Mitchell that he had liberty to apply to the court, to set the order aside or to vary its terms. “That provision provides protection to Mr Mitchell, if there be some aspect of the matter which he has not yet drawn to the court's attention but which would be of assistance to him.”
The judge concluded: “For all those reasons it seems to me entirely just and convenient to grant the injunction substantially in the terms sought, and I will do so.”