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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hertsmere Borough Council v Slattery & Ors [2002] EWCA Civ 1231 (23 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1231.html Cite as: [2002] EWCA Civ 1231

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
(Mr Justice Pitchers)

		Royal Courts of Justice Strand London WC2 Tuesday, 23rd July 2002

Tuesday, 26th July 2002

1. LORD JUSTICE PETER GIBSON: I will ask Mr Justice Buckley to give the first judgment.
2. MR JUSTICE BUCKLEY: There is at present perhaps some uncertainty as to the law concerning the matters that a judge should take into account in considering whether to grant an injunction under section 187B of the Town and Country Planning Act 1990. The competing arguments seem to be that, because the due planning processes have taken place, the court should not look at what may be called merits of the matter again. The other view is that particularly paying heed to Article 8 of the European Convention on Human Rights, the judge should for himself look at all the circumstances and the merits of the case. Under that Article those would, of course, include matters such as the education of children, health and general welfare, and so forth.
3. This case is yet another that gives rise to the same debate. The matter originally came before His Honour Judge Hepple QC sitting as a Deputy High Court Judge. It had already acquired a history by the time it came to him, and on 9th April he granted an injunction against the defendants, who were a small community of gypsies occupying land which, as I understand it, they owned. It now appears reasonably clear that the judge was faced with an acceptance by counsel that, as the law was then understood, an injunction would inevitably be granted. But there were four cases currently pending in the Court of Appeal. The judge was faced with either granting the injunction and giving leave to appeal, or another course, which he adopted, which was to grant the injunction but to stay its application pending the outcome of at least one of the matters pending in the Court of Appeal. That is what he did and he gave liberty to apply. Again in this somewhat muddled affair, it now seems reasonably clear that the judge's purpose in giving liberty to apply was so that, in particular, the defendants could reapply if the Court of Appeal in determining the appeals opened the door wider than it was understood to be open at that time to the introduction of merit and family matters on behalf of the defendants.
4. In due course the Court of Appeal did determine one of the appeals, but three others are on their way to the House of Lords. The defendants took the view that they should wait to see whether a petition was successful, which indeed it was. So the chronology, very briefly, is that His Honour Judge Hepple's order was in April 2001, the Court of Appeal determined one of the appeals, namely Harty, on 12th October 2001. It was only on 7th February 2002, the following year, that the House of Lords refused permission to appeal in one of the appeals, the one that I mentioned, Harty. It was then perfectly clear that the contingency in His Honour Judge Hepple's order had in fact materialised and the stay, all other things being equal, should then be lifted, and that was the view the learned judge took.
5. The matter still remained a little unclear as to what actually happened before Pitchers J. The defendants applied to continue the stay by application on 22nd March. They asked for the stay to be continued pending the determination of the appeals in the House of Lords, but further in the alternative, they asked that the injunction be varied or discharged and that the defendants have leave to file evidence in support of that application. Whether they needed to ask for leave to file evidence seems doubtful. At best, one would have expected simply an application under the liberty to apply supported by evidence.
6. At all events, no evidence of what I refer to as the merits was put in and the matter proceeded. It is unclear precisely how matters proceeded before Pitchers J, but he makes no reference at all to the application to file evidence in support of the application to vary in his short judgment. That is not intended as any criticism, because there is a suggestion -- and this is probably correct -- that counsel appearing for the applicants then did not pursue that part of their application independently from the application for a stay pending the determination in the House of Lords. If that is right, it is not surprising that the learned Judge did not comment on the application to vary. At all events, he simply determined that the contingency mentioned in His Honour Judge Hepple's order which suspended the injunction had now materialised and that that was enough to resolve the matter and that the injunction should go.
7. The applicants now seek leave to appeal that order, after refusal on paper by Peter Gibson LJ. Peter Gibson LJ pointed out that there were no substantive points taken in the application. It is taking a hint from that that a further witness statement has been put in for our benefit from Mr Browne, which does deploy various matters touching the health of the applicants and the education of their children. It has to be said, on a very quick reading of those matters, that there is some encouraging and quite impressive evidence there. The question now arises as to what is best to be done in those circumstances.
8. The function of this court is to review the decision of Pitchers J. As matters were presented and pursued before him, he could only arrive at one conclusion, which he did. This court is now asked to give leave to appeal so that a different outcome can be achieved on evidence which was never placed before the learned judge. It seems to us that that is an inappropriate basis for permission to appeal, and the proper course would be to apply afresh to a judge of the Queen's Bench Division to vary or discharge the injunction or, indeed, to stay the effect of His Honour Judge Hepple's original order. That could be done on the basis of the evidence that has now been collected and, in particular, one further matter, which remains unresolved before us, as to whether the site in question is in fact in a landscape conservation area at all. There is a suggestion before us, based on a letter written by Community Law Partnership dated 15th June, that the Council has very recently conceded that it is not in the conservation area. That is a point which might be regarded as absolutely central to this whole matter, because it was essentially that aspect which weighed against the defendants throughout the whole planning process and the final determination of it against them. So, if there was a mistake on that, on any view, that would be a very material matter.
9. In my judgment, it would be for a judge in the Queen's Bench Division to decide whether he should entertain a further application. That will depend on the nature of the evidence placed before him and the circumstances deployed before him. It is not for us to pre-empt how he would react: simply to indicate that in our view that is the proper course for the applicants to try and not to seek to appeal the order of Pitchers J whose decision was inevitable on the material before him and the way in which the matter was deployed before him.
10. For those reasons I would refuse permission.
11. LORD JUSTICE PETER GIBSON: I agree.
Order: Application refused. Detailed assessment of the Applicants' publicly funded costs.